25 CFR Part 23

25 CFR Part 23 (up to date as of 5/05/2025)
Indian Child Welfare Act

25 CFR Part 23 (May 5, 2025)

This content is from the eCFR and is authoritative but unofficial.

Title 25 —Indians
Chapter I —Bureau of Indian Affairs, Department of the Interior
Subchapter D —Human Services
Part 23 Indian Child Welfare Act
Subpart A Purpose, Definitions, and Policy
§ 23.1 Purpose.
§ 23.2 Definitions.
§ 23.3 Policy.
§ 23.4 Information collection.
Subpart B Notice of Involuntary Child Custody Proceedings and Payment for
Appointed Counsel in State Courts
§ 23.11 Notice.
§ 23.12 Designated tribal agent for service of notice.
§ 23.13 Payment for appointed counsel in involuntary Indian child custody proceedings in state
courts.
Subpart C Grants to Indian Tribes for Title II Indian Child and Family Service
Programs
§ 23.21 Noncompetitive tribal government grants.
§ 23.22 Purpose of tribal government grants.
§ 23.23 Tribal government application contents.
Subpart D Grants to Off-Reservation Indian Organizations for Title II Indian Child
and Family Service Programs
§ 23.31 Competitive off-reservation grant process.
§ 23.32 Purpose of off-reservation grants.
§ 23.33 Competitive off-reservation application contents and application selection criteria.
§ 23.34 Review and decision on off-reservation applications by Regional Director.
§ 23.35 Deadline for Central Office action.
Subpart E General and Uniform Grant Administration Provisions and
Requirements
§ 23.41 Uniform grant administration provisions, requirements and applicability.
§ 23.42 Technical assistance.
§ 23.43 Authority for grant approval and execution.
§ 23.44 Grant administration and monitoring.
§ 23.45 Subgrants.
§ 23.46 Financial management, internal and external controls and other assurances.
§ 23.47 Reports and availability of information to Indians.
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§ 23.48
§ 23.49
§ 23.50
§ 23.51
§ 23.52
§ 23.53
Subpart F
§ 23.61

Matching shares and agreements.
Fair and uniform provision of services.
Service eligibility.
Grant carry-over authority.
Grant suspension.
Cancellation.
Appeals
Appeals from decision or action by Agency Superintendent, Regional Director or Grants
Officer.
§ 23.62 Appeals from decision or action by Regional Director under subpart D.
§ 23.63 Appeals from inaction of official.
Subpart G Administrative Provisions
§ 23.71 Recordkeeping and information availability.
Subpart H Assistance to State Courts
§ 23.81 Assistance in identifying witnesses.
§ 23.82 Assistance in identifying language interpreters.
§ 23.83 Assistance in locating biological parents of Indian child after termination of adoption.
Subpart I Indian Child Welfare Act Proceedings

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General Provisions
§ 23.101 What is the purpose of this subpart?
§ 23.102 What terms do I need to know?
§ 23.103 When does ICWA apply?
§ 23.104 What provisions of this subpart apply to each type of child-custody proceeding?
§ 23.105 How do I contact a Tribe under the regulations in this subpart?
§ 23.106 How does this subpart interact with State and Federal laws?
Pretrial Requirements
§ 23.107 How should a State court determine if there is reason to know the child is an Indian
child?
§ 23.108 Who makes the determination as to whether a child is a member, whether a child is
eligible for membership, or whether a biological parent is a member of a Tribe?
§ 23.109 How should a State court determine an Indian child's Tribe when the child may be a
member or eligible for membership in more than one Tribe?
§ 23.110 When must a State court dismiss an action?
§ 23.111 What are the notice requirements for a child-custody proceeding involving an
Indian child?
§ 23.112 What time limits and extensions apply?
§ 23.113 What are the standards for emergency proceedings involving an Indian child?
§ 23.114 What are the requirements for determining improper removal?
Petitions To Transfer to Tribal Court
§ 23.115 How are petitions for transfer of a proceeding made?
§ 23.116 What happens after a petition for transfer is made?
§ 23.117 What are the criteria for ruling on transfer petitions?
§ 23.118 How is a determination of “good cause” to deny transfer made?
§ 23.119 What happens after a petition for transfer is granted?
Adjudication of Involuntary Proceedings
§ 23.120 How does the State court ensure that active efforts have been made?
§ 23.121 What are the applicable standards of evidence?
§ 23.122 Who may serve as a qualified expert witness?
§ 23.123 [Reserved]
Voluntary Proceedings
§ 23.124 What actions must a State court undertake in voluntary proceedings?
§ 23.125 How is consent obtained?
§ 23.126 What information must a consent document contain?
§ 23.127 How is withdrawal of consent to a foster-care placement achieved?
§ 23.128 How is withdrawal of consent to a termination of parental rights or adoption
achieved?
Dispositions
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§ 23.129
§ 23.130
§ 23.131
§ 23.132

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When do the placement preferences apply?
What placement preferences apply in adoptive placements?
What placement preferences apply in foster-care or preadoptive placements?
How is a determination of “good cause” to depart from the placement preferences
made?

Access
§ 23.133 Should courts allow participation by alternative methods?
§ 23.134 Who has access to reports and records during a proceeding?
§ 23.135 [Reserved]
Post-Trial Rights & Responsibilities
§ 23.136 What are the requirements for vacating an adoption based on consent having been
obtained through fraud or duress?
§ 23.137 Who can petition to invalidate an action for certain ICWA violations?
§ 23.138 What are the rights to information about adoptees' Tribal affiliations?
§ 23.139 Must notice be given of a change in an adopted Indian child's status?
Recordkeeping
§ 23.140 What information must States furnish to the Bureau of Indian Affairs?
§ 23.141 What records must the State maintain?
§ 23.142 How does the Paperwork Reduction Act affect this subpart?
Effective Date
§ 23.143 How does this subpart apply to pending proceedings?
Severability
§ 23.144 What happens if some portion of this part is held to be invalid by a court of
competent jurisdiction?

PART 23—INDIAN CHILD WELFARE ACT
Authority: 5 U.S.C. 301; 25 U.S.C. 2, 9, 1901-1952.
Source: 59 FR 2256, Jan. 13, 1994, unless otherwise noted.

Editorial Note: Nomenclature changes to part 23 appear at 79 FR 27190, May 13, 2014.
Subpart A—Purpose, Definitions, and Policy
§ 23.1 Purpose.
The purpose of the regulations in this part is to govern the provision of funding for, and the administration of Indian
child and family service programs as authorized by the Indian Child Welfare Act of 1978 (Pub. L. 95-608, 92 Stat.
3069, 25 U.S.C. 2, 9, 1901-1952).

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25 CFR 23.2

§ 23.2 Definitions.
Act

means the Indian Child Welfare Act (ICWA), Pub. L. 95-608, 92 Stat. 3069, 25 U.S.C. 1901 et seq.

Active efforts means affirmative, active, thorough, and timely efforts intended primarily to maintain or reunite an
Indian child with his or her family. Where an agency is involved in the child-custody proceeding, active
efforts must involve assisting the parent or parents or Indian custodian through the steps of a case plan
and with accessing or developing the resources necessary to satisfy the case plan. To the maximum
extent possible, active efforts should be provided in a manner consistent with the prevailing social and
cultural conditions and way of life of the Indian child's Tribe and should be conducted in partnership with
the Indian child and the Indian child's parents, extended family members, Indian custodians, and Tribe.
Active efforts are to be tailored to the facts and circumstances of the case and may include, for example:
(1) Conducting a comprehensive assessment of the circumstances of the Indian child's family, with a
focus on safe reunification as the most desirable goal;
(2) Identifying appropriate services and helping the parents to overcome barriers, including actively
assisting the parents in obtaining such services;
(3) Identifying, notifying, and inviting representatives of the Indian child's Tribe to participate in providing
support and services to the Indian child's family and in family team meetings, permanency planning,
and resolution of placement issues;
(4) Conducting or causing to be conducted a diligent search for the Indian child's extended family
members, and contacting and consulting with extended family members to provide family structure
and support for the Indian child and the Indian child's parents;
(5) Offering and employing all available and culturally appropriate family preservation strategies and
facilitating the use of remedial and rehabilitative services provided by the child's Tribe;
(6) Taking steps to keep siblings together whenever possible;
(7) Supporting regular visits with parents or Indian custodians in the most natural setting possible as
well as trial home visits of the Indian child during any period of removal, consistent with the need to
ensure the health, safety, and welfare of the child;
(8) Identifying community resources including housing, financial, transportation, mental health,
substance abuse, and peer support services and actively assisting the Indian child's parents or, when
appropriate, the child's family, in utilizing and accessing those resources;
(9) Monitoring progress and participation in services;
(10) Considering alternative ways to address the needs of the Indian child's parents and, where
appropriate, the family, if the optimum services do not exist or are not available;
(11) Providing post-reunification services and monitoring.
Assistant Secretary means the Assistant Secretary—Indian Affairs, the Department of the Interior.
Bureau of Indian Affairs (BIA) means the Bureau of Indian Affairs, the Department of the Interior.
Child-custody proceeding.
(1) “Child-custody proceeding” means and includes any action, other than an emergency proceeding,
that may culminate in one of the following outcomes:
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(i)

25 CFR 23.2 “Child-custody proceeding” (1)(i)

Foster-care placement, which is any action removing an Indian child from his or her parent or
Indian custodian for temporary placement in a foster home or institution or the home of a
guardian or conservator where the parent or Indian custodian cannot have the child returned
upon demand, but where parental rights have not been terminated;

(ii) Termination of parental rights, which is any action resulting in the termination of the parent-child
relationship;
(iii) Preadoptive placement, which is the temporary placement of an Indian child in a foster home or
institution after the termination of parental rights, but prior to or in lieu of adoptive placement;
or
(iv) Adoptive placement, which is the permanent placement of an Indian child for adoption,
including any action resulting in a final decree of adoption.
(2) An action that may culminate in one of these four outcomes is considered a separate child-custody
proceeding from an action that may culminate in a different one of these four outcomes. There may
be several child-custody proceedings involving any given Indian child. Within each child-custody
proceeding, there may be several hearings. If a child is placed in foster care or another out-of-home
placement as a result of a status offense, that status offense proceeding is a child-custody
proceeding.
Consortium means an association or partnership of two or more eligible applicants who enter into an agreement
to administer a grant program and to provide services under the grant to Indian residents in a specific
geographical area when it is administratively feasible to provide an adequate level of services within the
area.
Continued custody means physical custody or legal custody or both, under any applicable Tribal law or Tribal
custom or State law, that a parent or Indian custodian already has or had at any point in the past. The
biological mother of a child has had custody of a child.
Custody means physical custody or legal custody or both, under any applicable Tribal law or Tribal custom or
State law. A party may demonstrate the existence of custody by looking to Tribal law or Tribal custom or
State law.
Domicile means:
(1) For a parent or Indian custodian, the place at which a person has been physically present and that
the person regards as home; a person's true, fixed, principal, and permanent home, to which that
person intends to return and remain indefinitely even though the person may be currently residing
elsewhere.
(2) For an Indian child, the domicile of the Indian child's parents or Indian custodian or guardian. In the
case of an Indian child whose parents are not married to each other, the domicile of the Indian child's
custodial parent.
Emergency proceeding means and includes any court action that involves an emergency removal or emergency
placement of an Indian child.
Extended family member is defined by the law or custom of the Indian child's Tribe or, in the absence of such law
or custom, is a person who has reached age 18 and who is the Indian child's grandparent, aunt or uncle,
brother or sister, brother-in-law or sister-in-law, niece or nephew, first or second cousin, or stepparent.

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25 CFR 23.2 “Grant”

Grant means a written agreement between the BIA and the governing body of an Indian tribe or Indian
organization wherein the BIA provides funds to the grantee to plan, conduct or administer specific
programs, services, or activities and where the administrative and programmatic provisions are
specifically delineated.
Grantee means the tribal governing body of an Indian tribe or Board of Directors of an Indian organization
responsible for grant administration.
Grants officer means an officially designated officer who administers ICWA grants awarded by the Bureau of
Indian Affairs, the Department of the Interior.
Hearing means a judicial session held for the purpose of deciding issues of fact, of law, or both.
Indian means any person who is a member of an Indian tribe, or who is an Alaska Native and a member of a
Regional Corporation as defined in section 7 of the Alaska Native Claims Settlement Act, 43 U.S.C. 1606.
Indian child means any unmarried person who is under age 18 and either:
(1) Is a member or citizen of an Indian Tribe; or
(2) Is eligible for membership or citizenship in an Indian Tribe and is the biological child of a member/
citizen of an Indian Tribe.
Indian child's Tribe means:
(1) The Indian Tribe in which an Indian child is a member or eligible for membership; or
(2) In the case of an Indian child who is a member of or eligible for membership in more than one Tribe,
the Indian Tribe described in § 23.109.
Indian custodian means any Indian who has legal custody of an Indian child under applicable Tribal law or
custom or under applicable State law, or to whom temporary physical care, custody, and control has been
transferred by the parent of such child. An Indian may demonstrate that he or she is an Indian custodian
by looking to Tribal law or Tribal custom or State law.
Indian foster home means a foster home where one or more of the licensed or approved foster parents is an
“Indian” as defined in 25 U.S.C. 1903(3).
Indian organization, solely for purposes of eligibility for grants under subpart D of this part, means any legally
established group, association, partnership, corporation, or other legal entity which is owned or controlled
by Indians, or a majority (51 percent or more) of whose members are Indians.
Indian preference means preference and opportunities for employment and training provided to Indians in the
administration of grants in accordance with section 7 (b) of the Indian Self-Determination and Education
Assistance Act (25 U.S.C. 450).
Indian tribe means any Indian tribe, band, nation, or other organized group or community of Indians federally
recognized as eligible for the services provided to Indians by the Secretary because of their status as
Indians, including any Alaska Native village as defined in section 3 (c) of the Alaska Native Claims
Settlement Act, 43 U.S.C. 1602 (c).
Involuntary proceeding means a child-custody proceeding in which the parent does not consent of his or her free
will to the foster-care, preadoptive, or adoptive placement or termination of parental rights or in which the
parent consents to the foster-care, preadoptive, or adoptive placement under threat of removal of the
child by a State court or agency.
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25 CFR 23.2 “Off-reservation ICWA program”

Off-reservation ICWA program means an ICWA program administered in accordance with 25 U.S.C. 1932 by an
off-reservation Indian organization.
Parent or parents means any biological parent or parents of an Indian child, or any Indian who has lawfully
adopted an Indian child, including adoptions under Tribal law or custom. It does not include an unwed
biological father where paternity has not been acknowledged or established.
Reservation means Indian country as defined in 18 U.S.C 1151 and any lands, not covered under that section,
title to which is held by the United States in trust for the benefit of any Indian Tribe or individual or held by
any Indian Tribe or individual subject to a restriction by the United States against alienation.
Secretary means the Secretary of the Interior or the Secretary's authorized representative acting under delegated
authority.
Service areas solely for newly recognized or restored Indian tribes without established reservations means those
service areas congressionally established by Federal law to be the equivalent of a reservation for the
purpose of determining the eligibility of a newly recognized or restored Indian tribe and its members for
all Federal services and benefits.
State court means any agent or agency of a state, including the District of Columbia or any territory or
possession of the United States, or any political subdivision empowered by law to terminate parental
rights or to make foster care placements, preadoptive placements, or adoptive placements.
Status offenses mean offenses that would not be considered criminal if committed by an adult; they are acts
prohibited only because of a person's status as a minor (e.g., truancy, incorrigibility).
Subgrant means a secondary grant that undertakes part of the obligations of the primary grant, and assumes
the legal and financial responsibility for the funds awarded and for the performance of the grantsupported activity.
Technical assistance means the provision of oral, written, or other relevant information and assistance to
prospective grant applicants in the development of their grant proposals. Technical assistance may
include a preliminary review of an application to assist the applicant in identifying the strengths and
weaknesses of the proposal, ongoing program planning, design and evaluation, and such other programspecific assistance as is necessary for ongoing grant administration and management.
Title II means title II of Public Law 95-608, the Indian Child Welfare Act of 1978, which authorizes the Secretary
to make grants to Indian tribes and off-reservation Indian organizations for the establishment and
operation of Indian child and family service programs.
Tribal court means a court with jurisdiction over child-custody proceedings and which is either a Court of Indian
Offenses, a court established and operated under the code or custom of an Indian Tribe, or any other
administrative body of a Tribe vested with authority over child-custody proceedings.
Tribal government means the federally recognized governing body of an Indian tribe.
Upon demand means that the parent or Indian custodian can regain custody simply upon verbal request, without
any formalities or contingencies.
Value means face, par, or market value, or cost price, either wholesale or retail, whichever is greater.

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25 CFR 23.2 “Voluntary proceeding”

Voluntary proceeding means a child-custody proceeding that is not an involuntary proceeding, such as a
proceeding for foster-care, preadoptive, or adoptive 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,
consented to for the Indian child, or a proceeding for voluntary termination of parental rights.
[59 FR 2256, Jan. 13, 1994, as amended at 81 FR 38864, June 14, 2016]

§ 23.3 Policy.
In enacting the Indian Child Welfare Act of 1978, Pub. L. 95-608, the Congress has declared 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 Indian families by the establishment of minimum Federal standards to prevent the arbitrary removal of Indian
children from their families and tribes and to ensure that measures which prevent the breakup of Indian families are
followed in child custody proceedings (25 U.S.C. 1902). Indian child and family service programs receiving title II
funds and operated by federally recognized Indian tribes and off-reservation Indian organizations shall reflect the
unique values of Indian culture and promote the stability and security of Indian children, Indian families and Indian
communities. It is the policy of the Bureau of Indian Affairs to emphasize and facilitate the comprehensive design,
development and implementation of Indian child and family service programs in coordination with other Federal,
state, local, and tribal programs which strengthen and preserve Indian families and Indian tribes.

§ 23.4 Information collection.
(a) The information collection requirements contained in § 23.13 of this part have been approved by the
Office of Management and Budget (OMB) under 44 U.S.C. 3501 et seq., and assigned clearance number
1076-0111.
(1) This information will be used to determine eligibility for payment of legal fees for indigent Indian
parents and Indian custodians, involved in involuntary Indian child custody proceedings in state
courts, who are not eligible for legal services through other mechanisms. Response to this request is
required to obtain a benefit.
(2) Public reporting for this information collection is estimated to average 10 hours per response,
including the time for reviewing instructions, gathering and maintaining data, and completing and
reviewing the information collection. Direct comments regarding the burden estimate or any aspect
of this information collection should be mailed or hand-delivered to the Bureau of Indian Affairs,
Information Collection Clearance Officer, Room 336-SIB, 1849 C Street, NW., Washington, DC 20240;
and the Office of Information and Regulatory Affairs Paperwork Reduction Project—1076-0111,
Office of Management and Budget, Washington, DC 20503.
(b) The information collection requirements contained in §§ 23.21; 23.31; 23.46; 23.47, and 23.71 have been
approved by the Office of Management and Budget under 44 U.S.C. 3501 et seq. and assigned clearance
number 1076-0131. The information collection requirements under §§ 23.21 and 23.31 are collected in
the form of ICWA grant applications from Indian tribes and off-reservation Indian organizations. A
response to this request is required to obtain grant funds. The information collection requirements under
§ 23.46 are collected in compliance with applicable OMB circulars on financial management, internal and
external controls and other fiscal assurances in accordance with existing Federal grant administration
and reporting requirements. The grantee information collection requirements under § 23.47 are collected
in the form of quarterly and annual program performance narrative reports and statistical data as required

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25 CFR 23.4(b)(1)

by the grant award document. Pursuant to 25 U.S.C. 1951, the information collection requirement under §
23.71 is collected from state courts entering final adoption decrees for any Indian child and is provided to
and maintained by the Secretary.
(1) Public reporting for the information collection at §§ 23.21 and 23.31 is estimated to average 32
hours per response, including the time for reviewing the grant application instructions, gathering the
necessary information and data, and completing the grant application. Public reporting for the
information collection at §§ 23.46 and 23.47 is estimated to average a combined total of 16 annual
hours per grantee, including the time for gathering the necessary information and data, and
completing the required forms and reports. Public reporting for the information collection at § 23.71
is estimated to average 4 hours per response, including the time for obtaining and preparing the final
adoption decree for transmittal to the Secretary.
(2) Direct comments regarding any of these burden estimates or any aspect of these information
collection requirements should be mailed or hand-delivered to the Bureau of Indian Affairs,
Information Collection Clearance Officer, room 336-SIB, 1849 C Street, NW., Washington, DC, 20240;
and the Office of Information and Regulatory Affairs Paperwork Reduction Project—1076-0131,
Office of Management and Budget, Washington, DC 20503.

Subpart B—Notice of Involuntary Child Custody Proceedings and Payment for Appointed
Counsel in State Courts
§ 23.11 Notice.
(a) In any involuntary proceeding in a State court where the court knows or has reason to know that an Indian
child is involved, and where the identity and location of the child's parent or Indian custodian or Tribe is
known, the party seeking the foster-care placement of, or termination of parental rights to, an Indian child
must directly notify the parents, the Indian custodians, and the child's Tribe by registered or certified mail
with return receipt requested, of the pending child-custody proceedings and their right of intervention.
Notice must include the requisite information identified in § 23.111, consistent with the confidentiality
requirement in § 23.111(d)(6)(ix). Copies of these notices must be sent to the appropriate Regional
Director listed in paragraphs (b)(1) through (12) of this section by registered or certified mail with return
receipt requested or by personal delivery and must include the information required by § 23.111.
(b)
(1) For child-custody proceedings in Alabama, Connecticut, Delaware, District of Columbia, Florida,
Georgia, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Mississippi, New Hampshire, New
Jersey, New York, North Carolina, Pennsylvania, Rhode Island, South Carolina, Tennessee, Vermont,
Virginia, West Virginia, or any territory or possession of the United States, notices must be sent to
the following address: Eastern Regional Director, Bureau of Indian Affairs, 545 Marriott Drive, Suite
700, Nashville, Tennessee 37214.
(2) For child-custody proceedings in Illinois, Indiana, Iowa, Michigan, Minnesota, Ohio, or Wisconsin,
notices must be sent to the following address: Minneapolis Regional Director, Bureau of Indian
Affairs, 5600 American Blvd. W, Ste. 500, Bloomington, MN 55437.
(3) For child-custody proceedings in Nebraska, North Dakota, or South Dakota, notices must be sent to
the following address: Aberdeen Regional Director, Bureau of Indian Affairs, 115 Fourth Avenue SE.,
Aberdeen, South Dakota 57401.

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25 CFR 23.11(b)(4)

(4) For child-custody proceedings in Kansas, Texas (except for notices to the Ysleta del Sur Pueblo of El
Paso County, Texas), or the western Oklahoma counties of Alfalfa, Beaver, Beckman, Blaine, Caddo,
Canadian, Cimarron, Cleveland, Comanche, Cotton, Custer, Dewey, Ellis, Garfield, Grant, Greer,
Harmon, Harper, Jackson, Kay, Kingfisher, Kiowa, Lincoln, Logan, Major, Noble, Oklahoma, Pawnee,
Payne, Pottawatomie, Roger Mills, Texas, Tillman, Washita, Woods or Woodward, notices must be
sent to the following address: Anadarko Regional Director, Bureau of Indian Affairs, P.O. Box 368,
Anadarko, Oklahoma 73005. Notices to the Ysleta del Sur Pueblo must be sent to the Albuquerque
Regional Director at the address listed in paragraph (b)(6) of this section.
(5) For child-custody proceedings in Wyoming or Montana (except for notices to the Confederated
Salish and Kootenai Tribes of the Flathead Reservation, Montana), notices must be sent to the
following address: Billings Regional Director, Bureau of Indian Affairs, 316 N. 26th Street, Billings,
Montana 59101. Notices to the Confederated Salish and Kootenai Tribes of the Flathead
Reservation, Montana, must be sent to the Portland Regional Director at the address listed in
paragraph (b)(11) of this section.
(6) For child-custody proceedings in the Texas counties of El Paso and Hudspeth or in Colorado or New
Mexico (exclusive of notices to the Navajo Nation from the New Mexico counties listed in paragraph
(b)(9) of this section), notices must be sent to the following address: Albuquerque Regional Director,
Bureau of Indian Affairs, 615 First Street, P.O. Box 26567, Albuquerque, New Mexico 87125. Notices
to the Navajo Nation must be sent to the Navajo Regional Director at the address listed in paragraph
(b)(9) of this section.
(7) For child-custody proceedings in Alaska (except for notices to the Metlakatla Indian Community,
Annette Island Reserve, Alaska), notices must be sent to the following address: Alaska Regional
Director—Attn: Human Services, Bureau of Indian Affairs, 3601 C Street, Suite 1258, Anchorage,
Alaska 99503. Notices to the Metlakatla Indian Community, Annette Island Reserve, Alaska, must be
sent to the Portland Regional Director at the address listed in paragraph (b)(11) of this section.
(8) For child-custody proceedings in Arkansas, Missouri, or the eastern Oklahoma counties of Adair,
Atoka, Bryan, Carter, Cherokee, Craig, Creek, Choctaw, Coal, Delaware, Garvin, Grady, Haskell, Hughes,
Jefferson, Johnson, Latimer, LeFlore, Love, Mayes, McCurtain, McClain, McIntosh, Murray, Muskogee,
Nowata, Okfuskee, Okmulgee, Osage, Ottawa, Pittsburg, Pontotoc, Pushmataha, Marshall, Rogers,
Seminole, Sequoyah, Stephens, Tulsa, Wagoner, or Washington, notices must be sent to the following
address: Muskogee Regional Director, Bureau of Indian Affairs, 101 North Fifth Street, Muskogee,
Oklahoma 74401.
(9) For child-custody proceedings in the Arizona counties of Apache, Coconino (except for notices to the
Hopi Tribe of Arizona and the San Juan Southern Paiute Tribe of Arizona) or Navajo (except for
notices to the Hopi Tribe of Arizona); the New Mexico counties of McKinley (except for notices to the
Zuni Tribe of the Zuni Reservation), San Juan, or Socorro; or the Utah county of San Juan, notices
must be sent to the following address: Navajo Regional Director, Bureau of Indian Affairs, P.O. Box
1060, Gallup, New Mexico 87301. Notices to the Hopi and San Juan Southern Paiute Tribes of
Arizona must be sent to the Phoenix Regional Director at the address listed in paragraph (b)(10) of
this section. Notices to the Zuni Tribe of the Zuni Reservation must be sent to the Albuquerque
Regional Director at the address listed in paragraph (b)(6 of this section).
(10) For child-custody proceedings in Arizona (exclusive of notices to the Navajo Nation from those
counties listed in paragraph (b)(9) of this section), Nevada, or Utah (exclusive of San Juan County),
notices must be sent to the following address: Phoenix Regional Director, Bureau of Indian Affairs, 1
North First Street, P.O. Box 10, Phoenix, Arizona 85001.
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(11) For child-custody proceedings in Idaho, Oregon, or Washington, notices must be sent to the following
address: Portland Regional Director, Bureau of Indian Affairs, 911 NE 11th Avenue, Portland, Oregon
97232. All notices to the Confederated Salish and Kootenai Tribes of the Flathead Reservation,
located in the Montana counties of Flathead, Lake, Missoula, and Sanders, must also be sent to the
Portland Regional Director.
(12) For child-custody proceedings in California or Hawaii, notices must be sent to the following address:
Sacramento Regional Director, Bureau of Indian Affairs, Federal Office Building, 2800 Cottage Way,
Sacramento, California 95825.
(c) Upon receipt of the notice, the Secretary will make reasonable documented efforts to locate and notify the
child's Tribe and the child's parent or Indian custodian. The Secretary will have 15 days, after receipt of the
notice, to notify the child's Tribe and parents or Indian custodians and to send a copy of the notice to the
court. If within the 15-day period the Secretary is unable to verify that the child meets the criteria of an
Indian child as defined in § 23.2, or is unable to locate the parents or Indian custodians, the Secretary will
so inform the court and state how much more time, if any, will be needed to complete the verification or
the search. The Secretary will complete all research efforts, even if those efforts cannot be completed
before the child-custody proceeding begins.
(d) Upon request from a party to an Indian child-custody proceeding, the Secretary will make a reasonable
attempt to identify and locate the child's Tribe, parents, or Indian custodians to assist the party seeking
the information.
[81 FR 38866, June 14, 2016, as amended at 83 FR 55268, Nov. 5, 2018]

§ 23.12 Designated tribal agent for service of notice.
Any Indian tribe entitled to notice pursuant to 25 U.S.C. 1912 may designate by resolution, or by such other form as
the tribe's constitution or current practice requires, an agent for service of notice other than the tribal chairman and
send a copy of the designation to the Secretary or his/her designee. The Secretary or his/her designee shall update
and publish as necessary the names and addresses of the designated agents in the FEDERAL REGISTER. A current
listing of such agents shall be available through the area offices.

§ 23.13 Payment for appointed counsel in involuntary Indian child custody proceedings in state
courts.
(a) When a state court appoints counsel for an indigent Indian party in an involuntary Indian child custody
proceeding for which the appointment of counsel is not authorized under state law, the court shall send
written notice of the appointment to the BIA Regional Director designated for that state in § 23.11. The
notice shall include the following:
(1) Name, address, and telephone number of attorney who has been appointed.
(2) Name and address of client for whom counsel is appointed.
(3) Relationship of client to child.
(4) Name of Indian child's tribe.
(5) Copy of the petition or complaint.

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(6) Certification by the court that state law makes no provision for appointment of counsel in such
proceedings.
(7) Certification by the court that the Indian client is indigent.
(b) The Regional Director shall certify that the client is eligible to have his or her appointed counsel
compensated by the BIA unless:
(1) The litigation does not involve a child custody proceeding as defined in 25 U.S.C. 1903 (1);
(2) The child who is the subject of the litigation is not an Indian child as defined in 25 U.S.C. 1903 (4);
(3) The client is neither the Indian child who is the subject of the litigation, the Indian child's parent as
defined in 25 U.S.C. 1903 (9), nor the child's Indian custodian as defined in 25 U.S.C. 1903 (6);
(4) State law provides for appointment of counsel in such proceedings;
(5) The notice to the Regional Director of appointment of counsel is incomplete; or
(6) Funds are not available for the particular fiscal year.
(c) No later than 10 days after receipt of the notice of appointment of counsel, the Regional Director shall
notify the court, the client, and the attorney in writing whether the client has been certified as eligible to
have his or her attorney fees and expenses paid by the BIA. If certification is denied, the notice shall
include written reasons for that decision, together with a statement that complies with 25 CFR 2.7 and
that informs the applicant that the decision may be appealed to the Assistant Secretary. The Assistant
Secretary shall consider appeals under this subsection in accordance with 25 CFR 2.20 (c) through (e).
Appeal procedures shall be as set out in part 2 of this chapter.
(d) When determining attorney fees and expenses, the court shall:
(1) Determine the amount of payment due appointed counsel by the same procedures and criteria it
uses in determining the fees and expenses to be paid appointed counsel in state juvenile
delinquency proceedings; and
(2) Submit approved vouchers to the Regional Director who certified eligibility for BIA payment, together
with the court's certification that the amount requested is reasonable under the state standards
considering the work actually performed in light of criteria that apply in determining fees and
expenses for appointed counsel in state juvenile delinquency proceedings.
(e) The Regional Director shall authorize the payment of attorney fees and expenses in the amount requested
in the voucher approved by the court unless:
(1) The amount of payment due the state-appointed counsel is inconsistent with the fees and expenses
specified in § 23.13 (d)(1); or
(2) The client has not been certified previously as eligible under paragraph (c) of this section; or
(3) The voucher is submitted later than 90 days after completion of the legal action involving a client
certified as eligible for payment of legal fees under paragraph (b) of this section.
(f) No later than 15 days after receipt of a payment voucher, the Regional Director shall send written notice to
the court, the client, and the attorney stating the amount of payment, if any, that has been authorized. If
the payment has been denied, or the amount authorized is less than the amount requested in the voucher
approved by the court, the notice shall include a written statement of the reasons for the decision
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together with a statement that complies with 25 CFR 2.7 and that informs the client that the decision may
be appealed to the Interior Board of Indian Appeals in accordance with 25 CFR 2.4 (e); 43 CFR 4.310
through 4.318 and 43 CFR 4.330 through 4.340.
(g) Failure of the Regional Director to meet the deadline specified in paragraphs (c) and (f) of this section may
be treated as a denial for purposes of appeal under paragraph (f) of this section.
(h) Payment for appointed counsel does not extend to Indian tribes involved in state court child custody
proceedings or to Indian families involved in Indian child custody proceedings in tribal courts.

Subpart C—Grants to Indian Tribes for Title II Indian Child and Family Service Programs
§ 23.21 Noncompetitive tribal government grants.
(a) Grant application information and technical assistance. Information on grant application procedures and
related information may be obtained from the appropriate Agency Superintendent or Regional Director.
Pre-award and ongoing technical assistance to tribal governments shall be provided in accordance with §
23.42 of this part.
(b) Eligibility requirements for tribal governments. The tribal government(s) of any Indian tribe or consortium
of tribes may submit a properly documented application for a grant to the appropriate Agency
Superintendent or Regional Director. A tribe may neither submit more than one application for a grant nor
be the beneficiary of more than one grant under this subpart.
(1) Through the publication of a FEDERAL REGISTER announcement at the outset of the implementation of
the noncompetitive grant award process during which tribal applications will be solicited, the
Assistant Secretary will notify eligible tribal applicants under this subpart of the amount of core
funds available for their ICWA program. The funding levels will be based on the service area
population to be served. Upon the receipt of this notice from the Agency Superintendent or
appropriate Regional Director, tribal applicants shall submit a completed ICWA application no later
than 60 days after the receipt of this notice.
(2) A grant to be awarded under this subpart shall be limited to the tribal governing body(ies) of the
tribe(s) to be served by the grant.
(3) For purposes of eligibility for newly recognized or restored Indian tribes without established
reservations, such tribes shall be deemed eligible to apply for grants under this subpart to provide
ICWA services within those service areas legislatively identified for such tribes.
(4) A grantee under this subpart may make a subgrant to another Indian tribe or an Indian organization
subject to the provisions of § 23.45.
(c) Revision or amendment of grants. A grantee under this subpart may submit a written request and
justification for a post-award grant modification covering material changes to the terms and conditions of
the grant, subject to the approval of the grants officer. The request shall include a narrative description of
any significant additions, deletions, or changes to the approved program activities or budget in the form
of a grant amendment proposal.
(d) Continued annual funding of an ICWA grant under this subpart shall be contingent upon the fulfillment of
the requirements delineated at § 23.23(c).
(e) Monitoring and program reporting requirements for grantees under this subpart are delineated at §§
23.44 and 23.47.
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§ 23.22 Purpose of tribal government grants.
(a) Grants awarded under this subpart are for the establishment and operation of tribally designed Indian
child and family service programs. The objective of every Indian child and family service program shall be
to prevent the breakup of Indian families and to ensure that the permanent removal of an Indian child
from the custody of his or her Indian parent or Indian custodian shall be a last resort. Such child and
family service programs may include, but need not be limited to:
(1) A system for licensing or otherwise regulating Indian foster and adoptive homes, such as
establishing tribal standards for approval of on-reservation foster or adoptive homes;
(2) The operation and maintenance of facilities for counseling and treatment of Indian families and for
the temporary custody of Indian children with the goal of strengthening Indian families and
preventing parent-child separations;
(3) Family assistance, including homemaker and home counselors, protective day care and afterschool
care, recreational activities, respite care, and employment support services with the goal of
strengthening Indian families and contributing to family stability;
(4) Home improvement programs with the primary emphasis on preventing the removal of children due
to unsafe home environments by making homes safer, but not to make extensive structural home
improvements;
(5) The employment of professional and other trained personnel to assist the tribal court in the
disposition of domestic relations and child welfare matters, but not to establish tribal court systems;
(6) Education and training of Indians, including tribal court judges and staff, in skills relating to child and
family assistance and service programs;
(7) A subsidy program under which Indian adoptive children not eligible for state or BIA subsidy
programs may be provided support comparable to that for which they could be eligible as foster
children, taking into account the appropriate state standards of support for maintenance and
medical needs;
(8) Guidance, legal representation and advice to Indian families involved in tribal, state, or Federal child
custody proceedings; and
(9) Other programs designed to meet the intent and purposes of the Act.
(b) Grants may be provided to tribes in the preparation and implementation of child welfare codes within their
jurisdiction or pursuant to a tribal-state agreement.
(c) Grantees under this subpart may enhance their capabilities by utilizing ICWA funds as non-Federal
matching shares in connection with funds provided under titles IV-B, IV-E and XX of the Social Security Act
or other Federal programs which contribute to and promote the intent and purposes of the Act through
the provision of comprehensive child and family services in coordination with other tribal, Federal, state,
and local resources available for the same purpose.
(d) Program income resulting from the operation of programs under this subpart, such as day care
operations, may be retained and used for purposes similar to those for which the grant was awarded.

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§ 23.23 Tribal government application contents.
(a) The appropriate Regional Director shall, subject to the tribe's fulfillment of the mandatory application
requirements and the availability of appropriated funds, make a grant to the tribal governing body of a
tribe or consortium of tribes eligible to apply for a grant under this subpart.
(b) The following mandatory tribal application requirements must be submitted to the appropriate Agency
Superintendent or Regional Director in accordance with the timeframe established in § 23.21 (b) of this
subpart:
(1) A current tribal resolution requesting a grant by the Indian tribe(s) to be served by the grant. If an
applicant is applying for a grant benefiting more than one tribe (consortium), an authorizing
resolution from each tribal government to be served must be included. The request must be in the
form of a current tribal resolution by the tribal governing body and shall include the following
information:
(i)

The official name of tribe(s) applying for the grant and who will directly benefit from or receive
services from the grant;

(ii) The proposed beginning and ending dates of the grant;
(iii) A provision stating that the resolution will remain in effect for the duration of the program or
until the resolution expires or is rescinded; and
(iv) The signature of the authorized representative of the tribal government and the date thereof.
(2) A completed Application for Federal Assistance form, SF-424.
(3) A narrative needs assessment of the social problems or issues affecting the resident Indian
population to be served; the geographic area(s) to be served; and estimated number of resident
Indian families and/or persons to receive benefits or services from the program.
(4) A comprehensive developmental multi-year plan in narrative form describing what specific services
and/or activities will be provided each program year and addressing the above-identified social
problems or issues. At a minimum, the plan must include:
(i)

The program goals and objectives, stated in measurable terms, to be achieved through the
grant;

(ii) A narrative description of how Indian families and communities will benefit from the program;
and
(iii) The methodology, including culturally defined approaches, and procedures by which the tribe(s)
will accomplish the identified goals and objectives.
(5) An internal monitoring system to measure progress and accomplishments, and to assure that the
quality and quantity of actual performance conforms to the requirements of the grant.
(6) A staffing plan that is consistent with the implementation of the above-described program plan of
operation and the procedures necessary for the successful delivery of services.
(i)

The plan must include proposed key personnel; their qualifications, training or experience
relevant to the services to be provided; responsibilities; Indian preference criteria for
employment; and position descriptions.

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(ii) In accordance with 25 U.S.C. 3201 et seq. (Pub. L. 101-630), title IV, the Indian Child Protection
and Family Violence Prevention Act, grantees shall conduct character and background
investigations of those personnel identified in that statute. Grantees must initiate character and
background investigations of said personnel prior to their actual employment, and complete the
investigations in a timely manner.
(7) A program budget and budget narrative justification submitted on an annual basis for the amount of
the award and supported by the proposed plan, appropriate program services and activities for the
applicable grant year.
(8) Identification of any consultants and/or subgrantees the applicant proposes to employ; a description
of the consultant and/or subgrantee services to be rendered; the qualifications and experience in
performing the identified services; and the basis for the cost and amount to be paid for such
services.
(9) A certification by a licensed accountant that the bookkeeping and accounting procedures which the
tribe(s) uses or intends to use meet existing Federal standards for grant management and
administration specified at § 23.46.
(10) A system for managing property and recordkeeping which complies with subpart D of 43 CFR part 2
implementing the Privacy Act (5 U.S.C. 552a) and with existing Federal requirements for grants at 25
CFR 276.5 and 276.11, including the maintenance and safeguarding of direct service case records
on families and/or individuals served by the grant.
(11) A listing of equipment, facilities, and buildings necessary to carry out the grant program. Liability
insurance coverage for buildings and their contents is recommended for grantees under this
subpart.
(12) Pursuant to the Drug-Free Workplace Act of 1988, tribal programs shall comply with the mandatory
Drug-Free Workplace Certification, a regulatory requirement for Federal grant recipients.
(c) Continued annual funding of an ICWA program under this subpart shall be contingent upon the existing
grant program receiving a satisfactory program evaluation from the area social services office for the
previous year of operation. A copy of this evaluation must be submitted together with an annual budget
and budget narrative justification in accordance with paragraph (b)(7) of this section. Minimum standards
for receiving a satisfactory evaluation shall include:
(1) The timely submission of all fiscal and programmatic reports;
(2) A narrative program report indicating work accomplished in accordance with the applicant's
approved multi-year plan and, if applicable, a description of any modification in programs or
activities to be funded in the next fiscal year; and
(3) The implementation of mutually determined corrective action measures, if applicable.

Subpart D—Grants to Off-Reservation Indian Organizations for Title II Indian Child and Family
Service Programs

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25 CFR 23.31

§ 23.31 Competitive off-reservation grant process.
(a) Grant application procedures and related information may be obtained from the Regional Director
designated at § 23.11 for processing ICWA notices for the state in which the applicant is located. Preaward and ongoing technical assistance of off-reservation Indian organization grantees shall be provided
in accordance with § 23.42.
(b) Prior to the beginning of or during the applicable year(s) in which grants for off-reservation programs will
be awarded competitively, the Assistant Secretary—Indian Affairs shall publish in the FEDERAL REGISTER an
announcement of the grant application process for the year(s), including program priorities or special
considerations (if any), applicant eligibility criteria, the required application contents, the amount of
available funding and evaluation criteria for off-reservation programs.
(c) Based on the announcement described in paragraph (b) of this section, an off-reservation applicant shall
prepare a multi-year developmental application in accordance with § 23.33 of this subpart. To be
considered in the area competitive review and scoring process, a complete application must be received
by the deadline announced in the FEDERAL REGISTER by the Regional Director designated at § 23.11 for
processing ICWA notices for the state in which the applicant is located.
(d) Eligibility requirements for off-reservation Indian organizations. The Secretary or his/her designee shall,
contingent upon the availability of funds, make a multi-year grant under this subpart for an off-reservation
program when officially requested by a resolution of the board of directors of the Indian organization
applicant, upon the applicant's fulfillment of the mandatory application requirements and upon the
applicant's successful competition pursuant to § 23.33 of this subpart.
(e) A grant under this subpart for an off-reservation Indian organization shall be limited to the board of
directors of the Indian organization which will administer the grant.
(f) Continued annual funding of a multi-year grant award to an off-reservation ICWA program under this
subpart shall be contingent upon the grantee's fulfillment of the requirements delineated at § 23.33 (e).
(g) Monitoring and program reporting requirements for grants awarded to off-reservation Indian
organizations under this subpart are delineated at §§ 23.44 and 23.47.

§ 23.32 Purpose of off-reservation grants.
The Secretary or his/her designee is authorized to make grants to off-reservation Indian organizations to establish
and operate off-reservation Indian child and family service programs for the purpose of stabilizing Indian families
and tribes, preventing the breakup of Indian families and, in particular, to ensure that the permanent removal of an
Indian child from the custody of his/her Indian parent or Indian custodian shall be a last resort. Child and family
service programs may include, but are not limited to:
(a) A system for regulating, maintaining, and supporting Indian foster and adoptive homes, including a
subsidy program under which Indian adoptive children may be provided support comparable to that for
which they would be eligible as Indian foster children, taking into account the appropriate state standards
of support for maintenance and medical needs;
(b) The operation and maintenance of facilities and services for counseling and treatment of Indian families
and Indian foster and adoptive children with the goal of strengthening and stabilizing Indian families;
(c) Family assistance (including homemaker and home counselors), protective day care and afterschool care,
employment support services, recreational activities, and respite care with the goal of strengthening
Indian families and contributing toward family stability; and
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25 CFR 23.32(d)

(d) Guidance, legal representation and advice to Indian families involved in state child custody proceedings.

§ 23.33 Competitive off-reservation application contents and application selection criteria.
(a) An application for a competitive multi-year grant under this subpart shall be submitted to the appropriate
Regional Director prior to or on the announced deadline date published in the FEDERAL REGISTER. The
Regional Director shall certify the application contents pursuant to § 23.34 and forward the application
within five working days to the area review committee, composed of members designated by the Regional
Director, for competitive review and action. Modifications and/or information received after the close of
the application period, as announced in the FEDERAL REGISTER, shall not be reviewed or considered by the
area review committee in the competitive process.
(b) Mandatory application requirements for Indian organization applicants shall include:
(1) An official request for an ICWA grant program from the organization's board of directors covering the
duration of the proposed program;
(2) A completed Application for Federal Assistance form, SF 424;
(3) Written assurances that the organization meets the definition of Indian organization at § 23.2;
(4) A copy of the organization's current Articles of Incorporation for the applicable grant years;
(5) Proof of the organization's nonprofit status;
(6) A copy of the organization's IRS tax exemption certificate and IRS employer identification number;
(7) Proof of liability insurance for the applicable grant years; and
(8) Current written assurances that the requirements of Circular A-128 for fiscal management,
accounting, and recordkeeping are met.
(9) Pursuant to the Drug-Free Workplace Act of 1988, all grantees under this subpart shall comply with
the mandatory Drug-Free Workplace Certification, a regulatory requirement for Federal grant
recipients.
(c) Competitive application selection criteria. The Regional Director or his/her designated representative shall
select those proposals which will in his/her judgment best promote the proposes of the Act. Selection
shall be made through the area review committee process in which each application will be scored
individually and ranked according to score, taking into consideration the mandatory requirements as
specified above and the following selection criteria:
(1) The degree to which the application reflects an understanding of the social problems or issues
affecting the resident Indian client population which the applicant proposes to serve;
(2) Whether the applicant presents a narrative needs assessment, quantitative data and demographics
of the client Indian population to be served;
(3) Estimates of the number of Indian people to receive benefits or services from the program based on
available data;
(4) Program goals and objectives to be achieved through the grant;
(5) A comprehensive developmental multi-year narrative plan describing what specific services and/or
activities will be provided each program year and addressing the above-identified social problems or
issues. At a minimum, the plan must include a narrative description of the program; the program
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goals and objectives, stated in measurable terms, to be achieved through the grant; and the
methodology, including culturally defined approaches, and procedures by which the grantee will
accomplish the identified goals and objectives;
(6) An internal monitoring system the grantee will use to measure progress and accomplishments, and
to ensure that the quality and quantity of actual performance conforms to the requirements of the
grant;
(7) Documentation of the relative accessibility which the Indian population to be served under a specific
proposal already has to existing child and family service programs emphasizing the prevention of
Indian family breakups, such as mandatory state services. Factors to be considered in determining
accessibility include:
(i)

Cultural barriers;

(ii) Discrimination against Indians;
(iii) Inability of potential Indian clientele to pay for services;
(iv) Technical barriers created by existing public or private programs;
(v) Availability of transportation to existing programs;
(vi) Distance between the Indian community to be served under the proposal and the nearest
existing programs;
(vii) Quality of services provided to Indian clientele; and
(viii) Relevance of services provided to specific needs of the Indian clientele.
(8) If the proposed program duplicates existing Federal, state, or local child and family service programs
emphasizing the prevention of Indian family breakups, proper and current documented evidence that
repeated attempts to obtain services have been unsuccessful;
(9) Evidence of substantial support from the Indian community or communities to be served, including
but not limited to:
(i)

Tribal support evidenced by a tribal resolution or cooperative service agreements between the
administrative bodies of the affected tribe(s) and the applicant for the duration of the grant
period, or

(ii) Letters of support from social services organizations familiar with the applicant's past work
experience;
(10) A staffing plan that is consistent with the implementation of the above-described program plan of
operation and the procedures necessary for the successful delivery of services. The plan must
include proposed key personnel, their qualifications, training or experience relevant to the services to
be provided, responsibilities, Indian preference criteria for employment and position descriptions. In
accordance with 25 U.S.C. 3201 et seq. (Pub. L. 101-630), title IV, the Indian Child Protection and
Family Violence Prevention Act, grantees shall conduct character and background investigations of
those personnel identified in that statute prior to their actual employment;
(11) The reasonableness and relevance of the estimated overall costs of the proposed program or
services and their overall relation to the organization's funding base, activities, and mission;

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25 CFR 23.33(c)(12)

(12) The degree to which the detailed annual budget and justification for the requested funds are
consistent with, and clearly supported by, the proposed plan and by appropriate program services
and activities for the applicable grant year;
(13) The applicant's identification of any consultants and/or subgrantees it proposes to employ;
description of the services to be rendered; the qualifications and experience of said personnel,
reflecting the requirements for performing the identified services; and the basis for the cost and the
amount to be paid for such services;
(14) Certification by a licensed accountant that the bookkeeping and accounting procedures that the
applicant uses or intends to use meet existing Federal standards for grant administration and
management specified at § 23.46;
(15) The compliance of property management and recordkeeping systems with subpart D of 43 CFR part
2 (the Privacy Act, 5 U.S.C. 552a), and with existing Federal requirements for grants at 25 CFR 276.5
and 276.11, including the maintenance and safeguarding of direct service case records on families
and/or individuals served by the grant;
(16) A description of the proposed facilities, equipment, and buildings necessary to carry out the grant
activities; and
(17) Proof of liability insurance coverage for the applicable grant year(s).
(d) Two or more applications receiving the same competitive score will be prioritized in accordance with
announcements made in the FEDERAL REGISTER pursuant to § 23.31 (b) for the applicable year(s).
(e) Continued annual funding of a multi-year grant award to an off-reservation ICWA program under this
subpart shall be contingent upon the availability of appropriated funds and upon the existing grant
program receiving a satisfactory program evaluation from the area social services office for the previous
year of operation. A copy of this evaluation shall be submitted together with an annual budget and budget
narrative justification in accordance with paragraph (c)(10) of this section. Minimum standards for
receiving a satisfactory evaluation shall include the timely submission of all fiscal and programmatic
reports; a narrative program report indicating work accomplished in accordance with the initial approved
multi-year plan; and the implementation of mutually determined corrective action measures, if applicable.

§ 23.34 Review and decision on off-reservation applications by Regional Director.
(a) Area office certification. Upon receipt of an application for a grant by an off-reservation Indian
organization at the area office, the Regional Director shall:
(1) Complete and sign the area office certification form. In completing the area certification form, the
Regional Director shall assess and certify whether applications contain and meet all the application
requirements specified at § 23.33. Regional Directors shall be responsible for the completion of the
area office certification forms for all applications submitted by off-reservation Indian organizations.
(2) Acknowledge receipt of the application to the applicant and advise the applicant of the disposition of
the application within 10 days of receipt; and
(3) Transmit all applications within five working days of receipt to the area review committee for
competitive review and subsequent approval or disapproval of the applications.
(b) Area office competitive review and decision for off-reservation applications. Upon receipt of an application
for an off-reservation grant under this part requiring the approval of the Regional Director, the Regional
Director shall:
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(1) Establish and convene an area review committee, chaired by a person qualified by knowledge,
training and experience in the delivery of Indian child and family services.
(2) Review the area office certification form required in paragraph (a) of this section.
(3) Review the application in accordance with the competitive review procedures prescribed in § 23.33.
An application shall not receive approval for funding under the area competitive review and scoring
process unless a review of the application determines that it:
(i)

Contains all the information required in § 23.33 which must be received by the close of the
application period. Modifications of the grant application received after the close of the
application period shall not be considered in the competitive review process.

(ii) Receives at least the established minimum score in an area competitive review, using the
application selection criteria and scoring process set out in § 23.33. The minimum score shall
be established by the Central Office prior to each application period and announced in the
FEDERAL REGISTER for the applicable grants year(s).
(4) Approve or disapprove the application and promptly notify the applicant in writing of the approval or
disapproval of the application. If the application is disapproved, the Regional Director shall include in
the written notice the specific reasons therefore.
(c) The actual funding amounts for the initial grant year shall be subject to appropriations available
nationwide and the continued funding of an approved off-reservation grant application under subpart D of
this part shall be subject to available funds received by the respective area office for the applicable grant
year. Initial funding decisions and subsequent decisions with respect to funding level amounts for all
approved grant applications under this part shall be made by the Regional Director.

§ 23.35 Deadline for Central Office action.
Within 30 days of the receipt of grant reporting forms from the Regional Directors identifying approved and
disapproved applications pursuant to subpart D of this part and recommended funding levels for approved
applications, the Secretary or his/her designee shall process the Regional Directors' funding requests.

Subpart E—General and Uniform Grant Administration Provisions and Requirements
§ 23.41 Uniform grant administration provisions, requirements and applicability.
The general and uniform grant administration provisions and requirements specified at 25 CFR part 276 and under
this subpart are applicable to all grants awarded to tribal governments and off-reservation Indian organizations
under this part, except to the extent inconsistent with an applicable Federal statute, regulation or OMB circular.

§ 23.42 Technical assistance.
(a) Pre-award and ongoing technical assistance may be requested by an Indian tribe or off-reservation Indian
organization from the appropriate agency or area office to which the tribe or organization will be
submitting an application for funds under subparts C and D of this part. A request for pre-award technical
assistance by an off-reservation Indian organization must be received by the Regional Director designated
at § 23.11 for the state in which the applicant is located no later than 10 days prior to the application
deadline to assure sufficient time for area response.

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25 CFR 23.42(b)

(b) Pre-award and ongoing technical assistance may be provided by the appropriate BIA agency or area office
for purposes of program planning and design, assistance in establishing internal program monitoring and
evaluation criteria for ongoing grant administration and management, and for other appropriate
assistance requested.
(c) The area social services staff shall provide technical assistance to grantees upon receipt of an authorized
request from the grantee or when review of the grantee's quarterly performance reports shows that:
(1) An ICWA program is yielding results that are or will be detrimental to the welfare of the intended
Indian beneficiaries of the program;
(2) A program has substantially failed to implement its goals and objectives;
(3) There are serious irregularities in the fiscal management of the grant; or
(4) The grantee is otherwise deficient in its program performance.
(5) Upon receiving an authorized request from the grantee, the area social services staff and/or grants
officer shall provide the necessary technical assistance to arrive at mutually determined corrective
action measures and their actual implementation, if necessary, and the timeframes within which said
corrective actions will be implemented.

§ 23.43 Authority for grant approval and execution.
(a) Tribal government programs. The appropriate Agency Superintendent or Regional Director may approve a
grant application and its subsequent execution under subpart C when the intent, purpose and scope of
the application pertains solely to reservations located within the service area jurisdiction of the agency or
area office.
(b) Off-reservation programs. The appropriate Regional Director may approve a grant application and its
subsequent execution under subpart D when the intent, purpose and scope of the grant proposal pertains
to off-reservation Indian service populations or programs.

§ 23.44 Grant administration and monitoring.
All grantees under this part shall be responsible for managing day-to-day program operations to ensure that
program performance goals are being achieved and to ensure compliance with the provisions of the grant award
document and other applicable Federal requirements. Unless delegated to the Agency Superintendent, appropriate
area office personnel designated by the Regional Director shall be responsible for all grant program and fiscal
monitoring responsibilities.

§ 23.45 Subgrants.
A tribal government grantee may make a subgrant under subpart C of this part, provided that such subgrants are for
the purpose for which the grant was made and that the grantee retains administrative and financial responsibility
over the activity and the funds.

§ 23.46 Financial management, internal and external controls and other assurances.
Grantee financial management systems shall comply with the following standards for accurate, current and
complete disclosure of financial activities.

25 CFR 23.46 (enhanced display)

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25 CFR 23.46(a)

(a) OMB Circular A-87 (Cost principles for state and local governments and federally recognized Indian tribal
governments).
(b) OMB Circular A-102 (Common rule 43 CFR part 12).
(c) OMB Circular A-128 (Single Audit Act).
(d) OMB Circular A-110 or 122 (Cost principles for non-profit organizations and tribal organizations, where
applicable).
(e) Internal control. Effective control and accountability must be maintained for all grants. Grantees must
adequately safeguard any property and must ensure that it is used solely for authorized purposes.
(f) Budget control. Actual expenditures must be compared with budgeted amounts for the grant. Financial
information must be related to program performance requirements.
(g) Source documentation. Accounting records must be supported by such source documentation as
cancelled checks, paid bills, payrolls, time and attendance records, grant documents, or other information
required by the grantee's financial management system. The Secretary or his/her designee may review the
adequacy of the financial management system of an Indian tribe(s) or off-reservation Indian organization
applying for a grant under this part.
(h) Pursuant to 18 U.S.C. 641, whoever embezzles, steals, purloins, or knowingly converts to his or her use or
the use of another, or without authority, sells, conveys or disposes of any record, voucher, money, or thing
of value of the United States or of any department or agency thereof, or any property made or being made
under contract for the United States or any department or agency thereof; or whoever receives, conceals,
or retains the same with intent to convert it to his or her use or gain, knowing it to have been embezzled,
stolen, purloined, or converted shall be fined not more than $10,000 or imprisoned not more than 10
years, or both; but if the value of such property does not exceed the sum of $100, he or she shall be fined
not more than $1,000 or imprisoned not more than one year, or both.

§ 23.47 Reports and availability of information to Indians.
(a) Any tribal government or off-reservation Indian organization receiving a grant under this part shall make
general programmatic information and reports concerning that grant available to the Indian people it
serves or represents. Access to this information may be requested in writing and shall be made available
within 10 days of receipt of the request. Except as required by title IV of Pub. L. 101-630, the Indian Child
Protection and Family Violence Prevention Act, grantees shall hold confidential all information obtained
from persons receiving services from the program, and shall not release such information without the
individual's written consent. Information may be disclosed in a manner which does not identify or lead to
the identification of particular individuals.
(b) Grantees shall submit Standard Form 269 or 269A on a quarterly and an annual basis to report their
status of funds by the dates specified in the grant award document.
(c) Grantees shall furnish and submit the following written quarterly and annual program reports by the dates
specified in the award document:
(1) Quarterly and annual statistical and narrative program performance reports which shall include, but
need not be limited to, the following;
(i)

A summary of actual accomplishments and significant activities as related to program
objectives established for the grant period;

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25 CFR 23.47(c)(1)(ii)

(ii) The grantee's evaluation of program performance using the internal monitoring system
submitted in their application;
(iii) Reports on all significant ICWA direct service grant activities including but not limited to the
following information:
(A) Significant title II activities;
(B) Data reflecting numbers of individuals referred for out-of-home placements, number of
individuals benefiting from title II services and types of services provided, and
(C) Information and referral activities.
(iv) Child abuse and neglect statistical reports and related information as required by 25 U.S.C.
2434, Pub. L. 99-570, the Indian Alcohol and Substance Abuse Prevention and Treatment Act of
1986;
(v) A summary of problems encountered or reasons for not meeting established objectives;
(vi) Any deliverable or product required in the grant; and
(vii) Additional pertinent information when appropriate.
(2) The BIA may negotiate for the provision of other grant-related reports not previously identified.
(d) Events may occur between scheduled performance reporting dates which have significant impact on the
grant-supported activity. In such cases, the grantee must inform the awarding agency as soon as
problems, delays, adverse conditions, or serious incidents giving rise to liability become known and which
will materially impair its ability to meet the objectives of the grant.

§ 23.48 Matching shares and agreements.
(a) Grant funds provided to Indian tribes under subpart C of this part may be used as non-Federal matching
shares in connection with funds provided under titles IV-B, IV-E and XX of the Social Security Act or such
other Federal programs which contribute to and promote the purposes of the Act as specified in §§ 23.3
and 23.22 (25 U.S.C. 1931).
(b) Pursuant to 25 U.S.C. 1933, in furtherance of the establishment, operation, and funding of programs
funded under subparts C and D of this part, the Secretary may enter into agreements with the Secretary of
Health and Human Services. The latter Secretary is authorized by the Act to use funds appropriated for
the Department of Health and Human Services for programs similar to those funded under subparts C
and D of this part (25 U.S.C. 1931 and 1932), provided that authority to make payment pursuant to such
agreements shall be effective only to the extent and in such amounts as may be provided in advance by
appropriation Acts.

§ 23.49 Fair and uniform provision of services.
(a) Grants awarded under this part shall include provisions assuring compliance with the Indian Civil Rights
Act; prohibiting discriminatory distinctions among eligible Indian beneficiaries; and assuring the fair and
uniform provision by the grantees of the services and assistance they provide to eligible Indian
beneficiaries under such grants. Such procedures must include criteria by which eligible Indian
beneficiaries will receive services, recordkeeping mechanisms adequate to verify the fairness and
uniformity of services in cases of formal complaints, and an explanation of what rights will be afforded an
individual pending the resolution of a complaint.
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25 CFR 23.49(b)

(b) Indian beneficiaries of the services to be rendered under a grant shall be afforded access to
administrative or judicial bodies empowered to adjudicate complaints, claims, or grievances brought by
such Indian beneficiaries against the grantee arising out of the performance of the grant.

§ 23.50 Service eligibility.
(a) Tribal government Indian child and family service programs. Any person meeting the definition of Indian,
Indian child, Indian custodian, or Indian parent of any unmarried person under the age of 18 as defined in
§ 23.2 is eligible for services provided under 25 U.S.C. 1931 of the Act. Tribal membership status shall be
determined by tribal law, ordinance, or custom. The tribe may, under subpart C, extend services to
nontribal family members related by marriage to tribal members, provided such services promote the
intent and purposes of the Act. A tribe may also, within available resources, extend services under this
part to individuals who are members of, or are eligible for membership in other Indian tribes, and who
reside within the tribe's designated service area.
(b) Off-reservation Indian child and family service programs and agreements with the Secretary of Health and
Human Services pursuant to 25 U.S.C. 1933. For purposes of eligibility for services provided under 25
U.S.C. 1932 and 1933 of the Act, any person meeting the definition of Indian, Indian child, Indian
custodian, or Indian parent of any unmarried person under the age of 18 as defined in § 23.2, or the
definition of Indian as defined in 25 U.S.C. 1603(c), shall be eligible for services. Tribal membership status
shall be determined by tribal law, ordinance, or custom.

§ 23.51 Grant carry-over authority.
Unless restricted by appropriation, and contingent upon satisfactory program evaluations from the appropriate area
or agency office for an existing program, grantees are authorized to carry over unliquidated grant funds which
remain at the end of a budget period. Such funds may be carried over for a maximum period of two years beyond
the initial grant funding period and must be utilized only for the intent, purpose and scope of the original grant.
These carry-over grant funds shall not be reprogrammed into other appropriation activities or subactivities. Funds
carried over into another fiscal year will be added to the grantee's new fiscal year funding amount.

§ 23.52 Grant suspension.
(a) When a grantee has materially failed to comply and remains out of compliance with the terms and
conditions of the grant, the grants officer may, after reasonable notice to the grantee and the provision of
requested technical assistance, suspend the grant. The notice preceding the suspension shall include the
effective date of the suspension, the corrective measures necessary for reinstatement of the grant and, if
there is no immediate threat to safety, a reasonable timeframe for corrective action prior to actual
suspension.
(b) No obligation incurred by the grantee during the period of suspension shall be allowable under the
suspended grant, except that the grants officer may at his/her discretion allow necessary and proper
costs which the grantee could not reasonably avoid during the period of suspension if such costs would
otherwise be allowable under the applicable cost principles.
(c) Appropriate adjustments to the payments under the suspended grant will be made either by withholding
the payments or by not allowing the grantee credit for disbursements which the grantee may make in
liquidation of unauthorized obligations the grantee incurs during the period of suspension.
(d) Suspension shall remain in effect until the grantee has taken corrective action to the satisfaction of the
grants officer, or given assurances satisfactory to the grants officer that corrective action will be taken, or
until the grants officer cancels the grant.
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25 CFR 23.53

§ 23.53 Cancellation.
(a) The grants officer may cancel any grant, in whole or in part, at any time before the date of completion
whenever it is determined that the grantee has:
(1) Materially failed to comply with the terms and conditions of the grant;
(2) Violated the rights as specified in § 23.49 or endangered the health, safety, or welfare of any person;
or
(3) Been grossly negligent in, or has mismanaged the handling or use of funds provided under the grant.
(b) When it appears that cancellation of the grant will become necessary, the grants officer shall promptly
notify the grantee in writing of this possibility. This written notice shall advise the grantee of the reason
for the possible cancellation and the corrective action necessary to avoid cancellation. The grants officer
shall also offer, and shall provide, if requested by the grantee, any technical assistance which may be
required to effect the corrective action. The grantee shall have 60 days in which to effect this corrective
action before the grants officer provides notice of intent to cancel the grant as provided for in paragraph
(c) of this section.
(c) Upon deciding to cancel for cause, the grants officer shall promptly notify the grantee in writing of that
decision, the reason for the cancellation, and the effective date. The Regional Director or his/her
designated official shall also provide a hearing for the grantee before cancellation. However, the grants
officer may immediately cancel the grant, upon notice to the grantee, if the grants officer determines that
continuance of the grant poses an immediate threat to safety. In this event, the Regional Director or his/
her designated official shall provide a hearing for the grantee within 10 days of the cancellation.
(d) The hearing referred to in paragraph (c) of this section shall be conducted as follows:
(1) The grantee affected shall be notified, in writing, at least 10 days before the hearing. The notice
should give the date, time, place, and purpose of the hearing.
(2) A written record of the hearing shall be made. The record shall include written statements submitted
at the hearing or within five days following the hearing.

Subpart F—Appeals
§ 23.61 Appeals from decision or action by Agency Superintendent, Regional Director or Grants
Officer.
A grantee or prospective applicant may appeal any decision made or action taken by the Agency Superintendent,
Regional Director, or grants officer under subpart C or E of this part. Such an appeal shall be made to the Assistant
Secretary who shall consider the appeal in accordance with 25 CFR 2.20 (c) through (e). Appeal procedures shall be
as set out in part 2 of this chapter.

§ 23.62 Appeals from decision or action by Regional Director under subpart D.
A grantee or applicant may appeal any decision made or action taken by the Regional Director under subpart D that
is alleged to be in violation of the U.S. Constitution, Federal statutes, or the regulations of this part. These appeals
shall be filed with the Interior Board of Indian Appeals in accordance with 25 CFR 2.4 (e); 43 CFR 4.310 through
4.318 and 43 CFR 4.330 through 4.340. However, an applicant may not appeal a score assigned to its application or
the amount of grant funds awarded.
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25 CFR 23.63

§ 23.63 Appeals from inaction of official.
A person or persons whose interests are adversely affected, or whose ability to protect such interests is impeded by
the failure of an official to act on a request to the official, may make the official's inaction the subject of an appeal
under part 2 of this chapter.

Subpart G—Administrative Provisions
§ 23.71 Recordkeeping and information availability.
(a) The Division of Human Services, Bureau of Indian Affairs (BIA), is authorized to receive all information and
to maintain a central file on all State Indian adoptions. This file is confidential and only designated
persons may have access to it.
(b) Upon the request of an adopted Indian who has reached age 18, the adoptive or foster parents of an
Indian child, or an Indian Tribe, BIA will disclose such information as may be necessary for purposes of
Tribal enrollment or determining any rights or benefits associated with Tribal membership. Where the
documents relating to such child contain an affidavit from the biological parent or parents requesting
anonymity, BIA must certify to the Indian child's Tribe, where the information warrants, that the child's
parentage and other circumstances entitle the child to enrollment under the criteria established by such
Tribe.
(c) BIA will ensure that the confidentiality of this information is maintained and that the information is not
subject to the Freedom of Information Act, 5 U.S.C. 552, as amended.
[81 FR 38867, June 14, 2016]

Subpart H—Assistance to State Courts
§ 23.81 Assistance in identifying witnesses.
Upon the request of a party in an involuntary Indian child custody proceeding or of a court, the Secretary or his/her
designee shall assist in identifying qualified expert witnesses. Such requests for assistance shall be sent to the
Regional Director designated in § 23.11(c). The BIA is not obligated to pay for the services of such expert
witnesses.

§ 23.82 Assistance in identifying language interpreters.
Upon the request of a party in an Indian child custody proceeding or of a court, the Secretary or his/her designee
shall assist in identifying language interpreters. Such requests for assistance should be sent to the Regional
Director designated in § 23.11(c). The BIA is not obligated to pay for the services of such language interpreters.

§ 23.83 Assistance in locating biological parents of Indian child after termination of adoption.
Upon the request of a child placement agency, the court or an Indian tribe, the Secretary or his/her designee shall
assist in locating the biological parents or prior Indian custodians of an adopted Indian child whose adoption has
been terminated pursuant to 25 U.S.C. 1914. Such requests for assistance should be sent to the Regional Director
designated in § 23.11(c).

25 CFR 23.83 (enhanced display)

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25 CFR 23.101

Subpart I—Indian Child Welfare Act Proceedings
Source: 81 FR 38867, June 14, 2016, unless otherwise noted.

GENERAL PROVISIONS
§ 23.101 What is the purpose of this subpart?
The regulations in this subpart clarify the minimum Federal standards governing implementation of the Indian Child
Welfare Act (ICWA) to ensure that ICWA is applied in all States consistent with the Act's express language,
Congress's intent in enacting the statute, and to promote the stability and security of Indian tribes and families.

§ 23.102 What terms do I need to know?
The following terms and their definitions apply to this subpart. All other terms have the meanings assigned in §
23.2.
Agency means a nonprofit, for-profit, or governmental organization and its employees, agents, or officials that
performs, or provides services to biological parents, foster parents, or adoptive parents to assist in the
administrative and social work necessary for foster, preadoptive, or adoptive placements.
Indian organization means any group, association, partnership, corporation, or other legal entity owned or
controlled by Indians or a Tribe, or a majority of whose members are Indians.

§ 23.103 When does ICWA apply?
(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 outof-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.
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25 CFR 23.103(c)

(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.

§ 23.104 What provisions of this subpart apply to each type of child-custody proceeding?
The following table lists what sections of this subpart apply to each type of child-custody proceeding identified in §
23.103(a):

Section
23.101-23.106 (General Provisions)

Type of proceeding
Emergency, Involuntary,
Voluntary.

Pretrial Requirements:
23.107 (How should a State court determine if there is reason to
know the child is an Indian child?)

Emergency, Involuntary,
Voluntary.

23.108 (Who makes the determination as to whether a child is a
member whether a child is eligible for membership, or whether a
biological parent is a member of a Tribe?)

Emergency, Involuntary,
Voluntary.

23.109 (How should a State court determine an Indian child's Tribe Emergency, Involuntary,
when the child may be a member or eligible for membership in
Voluntary.
more than one Tribe?)
23.110 (When must a State court dismiss an action?)

Involuntary, Voluntary.

23.111 (What are the notice requirements for a child-custody
proceeding involving an Indian child?)

Involuntary (foster-care
placement and termination of
parental rights).

23.112 (What time limits and extensions apply?)

Involuntary (foster-care
placement and termination of
parental rights).

23.113 (What are the standards for emergency proceedings
involving an Indian child?)

Emergency.

23.114 (What are the requirements for determining improper
removal?)

Involuntary.

Petitions to Transfer to Tribal Court:
23.115 (How are petitions for transfer of a proceeding made?)

Involuntary, Voluntary (fostercare placement and
termination of parental rights).

23.116 (What happens after a petition for transfer is made?)

Involuntary, Voluntary (fostercare placement and

NOTE: For purposes of this table, status-offense child-custody proceedings are included as a type of
involuntary proceeding.

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25 CFR 23.104

Section

Type of proceeding
termination of parental rights).

23.117 (What are the criteria for ruling on transfer petitions?)

Involuntary, Voluntary (fostercare placement and
termination of parental rights).

23.118 (How is a determination of “good cause” to deny transfer
made?)

Involuntary, Voluntary (fostercare placement and
termination of parental rights).

23.119 (What happens after a petition for transfer is granted?)

Involuntary, Voluntary (fostercare placement and
termination of parental rights).

Adjudication of Involuntary Proceedings:
23.120 (How does the State court ensure that active efforts have
been made?)

Involuntary (foster-care
placement and termination of
parental rights).

23.121 (What are the applicable standards of evidence?)

Involuntary (foster-care
placement and termination of
parental rights).

23.122 (Who may serve as a qualified expert witness?)

Involuntary (foster-care
placement and termination of
parental rights).

23.123 Reserved

N/A.

Voluntary Proceedings:
23.124 (What actions must a State court undertake in voluntary
proceedings?)

Voluntary.

23.125 (How is consent obtained?)

Voluntary.

23.126 (What information must a consent document contain?)

Voluntary.

23.127 (How is withdrawal of consent to a foster-care placement
achieved?)

Voluntary.

23.128 (How is withdrawal of consent to a termination of parental
rights or adoption achieved?)

Voluntary.

Dispositions:
23.129 (When do the placement preferences apply?)

Involuntary, Voluntary.

23.130 (What placement preferences apply in adoptive
placements?)

Involuntary, Voluntary.

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

Involuntary, Voluntary.

23.132 (How is a determination of “good cause” to depart from the Involuntary, Voluntary.
placement preferences made?)
Access:
23.133 (Should courts allow participation by alternative methods?) Emergency, Involuntary.
NOTE: For purposes of this table, status-offense child-custody proceedings are included as a type of
involuntary proceeding.

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25 CFR 23.105

Section

Type of proceeding

23.134 (Who has access to reports and records during a
proceeding?)

Emergency, Involuntary.

23.135 Reserved.

N/A.

Post-Trial Rights & Responsibilities:
23.136 (What are the requirements for vacating an adoption based
on consent having been obtained through fraud or duress?)

Involuntary (if consent given
under threat of removal),
voluntary.

23.137 (Who can petition to invalidate an action for certain ICWA
violations?)

Emergency (to extent it
involved a specified violation),
involuntary, voluntary.

23.138 (What are the rights to information about adoptees' Tribal
affiliations?)

Emergency, Involuntary,
Voluntary.

23.139 (Must notice be given of a change in an adopted Indian
child's status?)

Involuntary, Voluntary.

Recordkeeping:
23.140 (What information must States furnish to the Bureau of
Indian Affairs?)

Involuntary, Voluntary.

23.141 (What records must the State maintain?)

Involuntary, Voluntary.

23.142 (How does the Paperwork Reduction Act affect this
subpart?)

Emergency, Involuntary,
Voluntary.

Effective Date:
23.143 (How does this subpart apply to pending proceedings?)

Emergency, Involuntary,
Voluntary.

Severability:
23.144 (What happens if some portion of part is held to be invalid
by a court of competent jurisdiction?)

Emergency, Involuntary,
Voluntary.

NOTE: For purposes of this table, status-offense child-custody proceedings are included as a type of
involuntary proceeding.

§ 23.105 How do I contact a Tribe under the regulations in this subpart?
To contact a Tribe to provide notice or obtain information or verification under the regulations in this subpart, you
should direct the notice or inquiry as follows:
(a) Many Tribes designate an agent for receipt of ICWA notices. The BIA publishes a list of Tribes' designated
Tribal agents for service of ICWA notice in the FEDERAL REGISTER each year and makes the list available on
its Web site at www.bia.gov.
(b) For a Tribe without a designated Tribal agent for service of ICWA notice, contact the Tribe to be directed
to the appropriate office or individual.

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25 CFR 23.105(c)

(c) If you do not have accurate contact information for a Tribe, or the Tribe contacted fails to respond to
written inquiries, you should seek assistance in contacting the Indian Tribe from the BIA local or regional
office or the BIA's Central Office in Washington, DC (see www.bia.gov).

§ 23.106 How does this subpart interact with State and Federal laws?
(a) The regulations in this subpart provide minimum Federal standards to ensure compliance with ICWA.
(b) Under section 1921 of ICWA, where applicable State or other Federal law provides a higher standard of
protection to the rights of the parent or Indian custodian than the protection accorded under the Act,
ICWA requires the State or Federal court to apply the higher State or Federal standard.

PRETRIAL REQUIREMENTS
§ 23.107 How should a State court determine if there is reason to know the child is an Indian
child?
(a) State courts must ask each participant in an emergency or voluntary or involuntary child-custody
proceeding whether the participant knows or has reason to know that the child is an Indian child. The
inquiry is made at the commencement of the proceeding and all responses should be on the record. State
courts must instruct the parties to inform the court if they subsequently receive information that provides
reason to know the child is an Indian child.
(b) If there is reason to know the child is an Indian child, but the court does not have sufficient evidence to
determine that the child is or is not an “Indian child,” the court must:
(1) Confirm, by way of a report, declaration, or testimony included in the record that the agency or other
party used due diligence to identify and work with all of the Tribes of which there is reason to know
the child may be a member (or eligible for membership), to verify whether the child is in fact a
member (or a biological parent is a member and the child is eligible for membership); and
(2) Treat the child as an Indian child, unless and until it is determined on the record that the child does
not meet the definition of an “Indian child” in this part.
(c) A court, upon conducting the inquiry required in paragraph (a) of this section, has reason to know that a
child involved in an emergency or child-custody proceeding is an Indian child if:
(1) Any participant in the proceeding, officer of the court involved in the proceeding, Indian Tribe, Indian
organization, or agency informs the court that the child is an Indian child;
(2) Any participant in the proceeding, officer of the court involved in the proceeding, Indian Tribe, Indian
organization, or agency informs the court that it has discovered information indicating that the child
is an Indian child;
(3) The child who is the subject of the proceeding gives the court reason to know he or she is an Indian
child;
(4) The court is informed that the domicile or residence of the child, the child's parent, or the child's
Indian custodian is on a reservation or in an Alaska Native village;
(5) The court is informed that the child is or has been a ward of a Tribal court; or
(6) The court is informed that either parent or the child possesses an identification card indicating
membership in an Indian Tribe.
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(d) In seeking verification of the child's status in a voluntary proceeding where a consenting parent evidences,
by written request or statement in the record, a desire for anonymity, the court must keep relevant
documents pertaining to the inquiry required under this section confidential and under seal. A request for
anonymity does not relieve the court, agency, or other party from any duty of compliance with ICWA,
including the obligation to verify whether the child is an “Indian child.” A Tribe receiving information
related to this inquiry must keep documents and information confidential.

§ 23.108 Who makes the determination as to whether a child is a member, whether a child is
eligible for membership, or whether a biological parent is a member of a Tribe?
(a) The Indian Tribe of which it is believed the child is a member (or eligible for membership and of which the
biological parent is a member) determines whether the child is a member of the Tribe, or whether the
child is eligible for membership in the Tribe and a biological parent of the child is a member of the Tribe,
except as otherwise provided by Federal or Tribal law.
(b) The determination by a Tribe of whether a child is a member, whether a child is eligible for membership, or
whether a biological parent is a member, is solely within the jurisdiction and authority of the Tribe, except
as otherwise provided by Federal or Tribal law. The State court may not substitute its own determination
regarding a child's membership in a Tribe, a child's eligibility for membership in a Tribe, or a parent's
membership in a Tribe.
(c) The State court may rely on facts or documentation indicating a Tribal determination of membership or
eligibility for membership in making a judicial determination as to whether the child is an “Indian child.” An
example of documentation indicating membership is a document issued by the Tribe, such as Tribal
enrollment documentation.

§ 23.109 How should a State court determine an Indian child's Tribe when the child may be a
member or eligible for membership in more than one Tribe?
(a) If the Indian child is a member or eligible for membership in only one Tribe, that Tribe must be designated
as the Indian child's Tribe.
(b) If the Indian child meets the definition of “Indian child” through more than one Tribe, deference should be
given to the Tribe in which the Indian child is already a member, unless otherwise agreed to by the Tribes.
(c) If an Indian child meets the definition of “Indian child” through more than one Tribe because the child is a
member in more than one Tribe or the child is not a member of but is eligible for membership in more
than one Tribe, the court must provide the opportunity in any involuntary child-custody proceeding for the
Tribes to determine which should be designated as the Indian child's Tribe.
(1) If the Tribes are able to reach an agreement, the agreed-upon Tribe should be designated as the
Indian child's Tribe.
(2) If the Tribes are unable to reach an agreement, the State court designates, for the purposes of ICWA,
the Indian Tribe with which the Indian child has the more significant contacts as the Indian child's
Tribe, taking into consideration:
(i)

Preference of the parents for membership of the child;

(ii) Length of past domicile or residence on or near the reservation of each Tribe;
(iii) Tribal membership of the child's custodial parent or Indian custodian; and
(iv) Interest asserted by each Tribe in the child-custody proceeding;
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(v) Whether there has been a previous adjudication with respect to the child by a court of one of
the Tribes; and
(vi) Self-identification by the child, if the child is of sufficient age and capacity to meaningfully selfidentify.
(3) A determination of the Indian child's Tribe for purposes of ICWA and the regulations in this subpart
do not constitute a determination for any other purpose.

§ 23.110 When must a State court dismiss an action?
Subject to 25 U.S.C. 1919 (Agreements between States and Indian Tribes) and § 23.113 (emergency proceedings),
the following limitations on a State court's jurisdiction apply:
(a) The court in any voluntary or involuntary child-custody proceeding involving an Indian child must
determine the residence and domicile of the Indian child. If either the residence or domicile is on a
reservation where the Tribe exercises exclusive jurisdiction over child-custody proceedings, the State
court must expeditiously notify the Tribal court of the pending dismissal based on the Tribe's exclusive
jurisdiction, dismiss the State-court child-custody proceeding, and ensure that the Tribal court is sent all
information regarding the Indian child-custody proceeding, including, but not limited to, the pleadings and
any court record.
(b) If the child is a ward of a Tribal court, the State court must expeditiously notify the Tribal court of the
pending dismissal, dismiss the State-court child-custody proceeding, and ensure that the Tribal court is
sent all information regarding the Indian child-custody proceeding, including, but not limited to, the
pleadings and any court record.

§ 23.111 What are the notice requirements for a child-custody proceeding involving an Indian
child?
(a) When a court knows or has reason to know that the subject of an involuntary foster-care-placement or
termination-of-parental-rights proceeding is an Indian child, the court must ensure that:
(1) The party seeking placement promptly sends notice of each such child-custody proceeding
(including, but not limited to, any foster-care placement or any termination of parental or custodial
rights) in accordance with this section; and
(2) An original or a copy of each notice sent under this section is filed with the court together with any
return receipts or other proof of service.
(b) Notice must be sent to:
(1) Each Tribe where the child may be a member (or eligible for membership if a biological parent is a
member) (see § 23.105 for information on how to contact a Tribe);
(2) The child's parents; and
(3) If applicable, the child's Indian custodian.
(c) Notice must be sent by registered or certified mail with return receipt requested. Notice may also be sent
via personal service or electronically, but such alternative methods do not replace the requirement for
notice to be sent by registered or certified mail with return receipt requested.
(d) Notice must be in clear and understandable language and include the following:
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(1) The child's name, birthdate, and birthplace;
(2) All names known (including maiden, married, and former names or aliases) of the parents, the
parents' birthdates and birthplaces, and Tribal enrollment numbers if known;
(3) If known, the names, birthdates, birthplaces, and Tribal enrollment information of other direct lineal
ancestors of the child, such as grandparents;
(4) The name of each Indian Tribe in which the child is a member (or may be eligible for membership if a
biological parent is a member);
(5) A copy of the petition, complaint, or other document by which the child-custody proceeding was
initiated and, if a hearing has been scheduled, information on the date, time, and location of the
hearing;
(6) Statements setting out:
(i)

The name of the petitioner and the name and address of petitioner's attorney;

(ii) The right of any parent or Indian custodian of the child, if not already a party to the childcustody proceeding, to intervene in the proceedings.
(iii) The Indian Tribe's right to intervene at any time in a State-court proceeding for the foster-care
placement of or termination of parental rights to an Indian child.
(iv) That, if the child's parent or Indian custodian is unable to afford counsel based on a
determination of indigency by the court, the parent or Indian custodian has the right to courtappointed counsel.
(v) The right to be granted, upon request, up to 20 additional days to prepare for the child-custody
proceedings.
(vi) The right of the parent or Indian custodian and the Indian child's Tribe to petition the court for
transfer of the foster-care-placement or termination-of-parental-rights proceeding to Tribal
court as provided by 25 U.S.C. 1911 and § 23.115.
(vii) The mailing addresses and telephone numbers of the court and information related to all
parties to the child-custody proceeding and individuals notified under this section.
(viii) The potential legal consequences of the child-custody proceedings on the future parental and
custodial rights of the parent or Indian custodian.
(ix) That all parties notified must keep confidential the information contained in the notice and the
notice should not be handled by anyone not needing the information to exercise rights under
ICWA.
(e) If the identity or location of the child's parents, the child's Indian custodian, or the Tribes in which the
Indian child is a member or eligible for membership cannot be ascertained, but there is reason to know
the child is an Indian child, notice of the child-custody proceeding must be sent to the appropriate Bureau
of Indian Affairs Regional Director (see www.bia.gov). To establish Tribal identity, as much information as
is known regarding the child's direct lineal ancestors should be provided. The Bureau of Indian Affairs will
not make a determination of Tribal membership but may, in some instances, be able to identify Tribes to
contact.

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(f) If there is a reason to know that a parent or Indian custodian possesses limited English proficiency and is
therefore not likely to understand the contents of the notice, the court must provide language access
services as required by Title VI of the Civil Rights Act and other Federal laws. To secure such translation
or interpretation support, a court may contact or direct a party to contact the Indian child's Tribe or the
local BIA office for assistance in locating and obtaining the name of a qualified translator or interpreter.
(g) If a parent or Indian custodian of an Indian child appears in court without an attorney, the court must
inform him or her of his or her rights, including any applicable right to appointed counsel, right to request
that the child-custody proceeding be transferred to Tribal court, right to object to such transfer, right to
request additional time to prepare for the child-custody proceeding as provided in § 23.112, and right (if
the parent or Indian custodian is not already a party) to intervene in the child-custody proceedings.

§ 23.112 What time limits and extensions apply?
(a) No foster-care-placement or termination-of-parental-rights proceeding may be held until at least 10 days
after receipt of the notice by the parent (or Indian custodian) and by the Tribe (or the Secretary). The
parent, Indian custodian, and Tribe each have a right, upon request, to be granted up to 20 additional days
from the date upon which notice was received to prepare for participation in the proceeding.
(b) Except as provided in 25 U.S.C. 1922 and § 23.113, no child-custody proceeding for foster-care placement
or termination of parental rights may be held until the waiting periods to which the parents or Indian
custodians and to which the Indian child's Tribe are entitled have expired, as follows:
(1) 10 days after each parent or Indian custodian (or Secretary where the parent or Indian custodian is
unknown to the petitioner) has received notice of that particular child-custody proceeding in
accordance with 25 U.S.C. 1912(a) and § 23.111;
(2) 10 days after the Indian child's Tribe (or the Secretary if the Indian child's Tribe is unknown to the
party seeking placement) has received notice of that particular child-custody proceeding in
accordance with 25 U.S.C. 1912(a) and § 23.111;
(3) Up to 30 days after the parent or Indian custodian has received notice of that particular child-custody
proceeding in accordance with 25 U.S.C. 1912(a) and § 23.111, if the parent or Indian custodian has
requested up to 20 additional days to prepare for the child-custody proceeding as provided in 25
U.S.C. 1912(a) and § 23.111; and
(4) Up to 30 days after the Indian child's Tribe has received notice of that particular child-custody
proceeding in accordance with 25 U.S.C. 1912(a) and § 23.111, if the Indian child's Tribe has
requested up to 20 additional days to prepare for the child-custody proceeding.
(c) Additional time beyond the minimum required by 25 U.S.C. 1912 and § 23.111 may also be available under
State law or pursuant to extensions granted by the court.

§ 23.113 What are the standards for emergency proceedings involving an Indian child?
(a) Any emergency removal or placement of an Indian child under State law must terminate immediately
when the removal or placement is no longer necessary to prevent imminent physical damage or harm to
the child.
(b) The State court must:
(1) Make a finding on the record that the emergency removal or placement is necessary to prevent
imminent physical damage or harm to the child;
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(2) Promptly hold a hearing on whether the emergency removal or placement continues to be necessary
whenever new information indicates that the emergency situation has ended; and
(3) At any court hearing during the emergency proceeding, determine whether the emergency removal or
placement is no longer necessary to prevent imminent physical damage or harm to the child.
(4) Immediately terminate (or ensure that the agency immediately terminates) the emergency
proceeding once the court or agency possesses sufficient evidence to determine that the emergency
removal or placement is no longer necessary to prevent imminent physical damage or harm to the
child.
(c) An emergency proceeding can be terminated by one or more of the following actions:
(1) Initiation of a child-custody proceeding subject to the provisions of ICWA;
(2) Transfer of the child to the jurisdiction of the appropriate Indian Tribe; or
(3) Restoring the child to the parent or Indian custodian.
(d) A petition for a court order authorizing the emergency removal or continued emergency placement, or its
accompanying documents, should contain a statement of the risk of imminent physical damage or harm
to the Indian child and any evidence that the emergency removal or placement continues to be necessary
to prevent such imminent physical damage or harm to the child. The petition or its accompanying
documents should also contain the following information:
(1) The name, age, and last known address of the Indian child;
(2) The name and address of the child's parents and Indian custodians, if any;
(3) The steps taken to provide notice to the child's parents, custodians, and Tribe about the emergency
proceeding;
(4) If the child's parents and Indian custodians are unknown, a detailed explanation of what efforts have
been made to locate and contact them, including contact with the appropriate BIA Regional Director
(see www.bia.gov);
(5) The residence and the domicile of the Indian child;
(6) If either the residence or the domicile of the Indian child is believed to be on a reservation or in an
Alaska Native village, the name of the Tribe affiliated with that reservation or village;
(7) The Tribal affiliation of the child and of the parents or Indian custodians;
(8) A specific and detailed account of the circumstances that led the agency responsible for the
emergency removal of the child to take that action;
(9) If the child is believed to reside or be domiciled on a reservation where the Tribe exercises exclusive
jurisdiction over child-custody matters, a statement of efforts that have been made and are being
made to contact the Tribe and transfer the child to the Tribe's jurisdiction; and
(10) A statement of the efforts that have been taken to assist the parents or Indian custodians so the
Indian child may safely be returned to their custody.
(e) An emergency proceeding regarding an Indian child should not be continued for more than 30 days unless
the court makes the following determinations:

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(1) Restoring the child to the parent or Indian custodian would subject the child to imminent physical
damage or harm;
(2) The court has been unable to transfer the proceeding to the jurisdiction of the appropriate Indian
Tribe; and
(3) It has not been possible to initiate a “child-custody proceeding” as defined in § 23.2.

§ 23.114 What are the requirements for determining improper removal?
(a) If, in the course of any child-custody proceeding, any party asserts or the court has reason to believe that
the Indian child may have been improperly removed from the custody of his or her parent or Indian
custodian, or that the Indian child has been improperly retained (such as after a visit or other temporary
relinquishment of custody), the court must expeditiously determine whether there was improper removal
or retention.
(b) If the court finds that the Indian child was improperly removed or retained, the court must terminate the
proceeding and the child must be returned immediately to his or her parent or Indian custodian, unless
returning the child to his parent or Indian custodian would subject the child to substantial and immediate
danger or threat of such danger.

PETITIONS TO TRANSFER TO TRIBAL COURT
§ 23.115 How are petitions for transfer of a proceeding made?
(a) Either parent, the Indian custodian, or the Indian child's Tribe may request, at any time, orally on the record
or in writing, that the State court transfer a foster-care or termination-of-parental-rights proceeding to the
jurisdiction of the child's Tribe.
(b) The right to request a transfer is available at any stage in each foster-care or termination-of-parentalrights proceeding.

§ 23.116 What happens after a petition for transfer is made?
Upon receipt of a transfer petition, the State court must ensure that the Tribal court is promptly notified in writing of
the transfer petition. This notification may request a timely response regarding whether the Tribal court wishes to
decline the transfer.

§ 23.117 What are the criteria for ruling on transfer petitions?
Upon receipt of a transfer petition from an Indian child's parent, Indian custodian, or Tribe, the State court must
transfer the child-custody proceeding unless the court determines that transfer is not appropriate because one or
more of the following criteria are met:
(a) Either parent objects to such transfer;
(b) The Tribal court declines the transfer; or
(c) Good cause exists for denying the transfer.

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§ 23.118 How is a determination of “good cause” to deny transfer made?
(a) If the State court believes, or any party asserts, that good cause to deny transfer exists, the reasons for
that belief or assertion must be stated orally on the record or provided in writing on the record and to the
parties to the child-custody proceeding.
(b) Any party to the child-custody proceeding must have the opportunity to provide the court with views
regarding whether good cause to deny transfer exists.
(c) In determining whether good cause exists, the court must not consider:
(1) Whether the foster-care or termination-of-parental-rights proceeding is at an advanced stage if the
Indian child's parent, Indian custodian, or Tribe did not receive notice of the child-custody proceeding
until an advanced stage;
(2) Whether there have been prior proceedings involving the child for which no petition to transfer was
filed;
(3) Whether transfer could affect the placement of the child;
(4) The Indian child's cultural connections with the Tribe or its reservation; or
(5) Socioeconomic conditions or any negative perception of Tribal or BIA social services or judicial
systems.
(d) The basis for any State-court decision to deny transfer should be stated orally on the record or in a written
order.

§ 23.119 What happens after a petition for transfer is granted?
(a) If the Tribal court accepts the transfer, the State court should expeditiously provide the Tribal court with all
records related to the proceeding, including, but not limited to, the pleadings and any court record.
(b) The State court should work with the Tribal court to ensure that the transfer of the custody of the Indian
child and of the proceeding is accomplished smoothly and in a way that minimizes the disruption of
services to the family.

ADJUDICATION OF INVOLUNTARY PROCEEDINGS
§ 23.120 How does the State court ensure that active efforts have been made?
(a) Prior to ordering an involuntary foster-care placement or termination of parental rights, the court must
conclude that active efforts have been made to prevent the breakup of the Indian family and that those
efforts have been unsuccessful.
(b) Active efforts must be documented in detail in the record.

§ 23.121 What are the applicable standards of evidence?
(a) The court must not order a foster-care placement of an Indian child unless clear and convincing evidence
is presented, including the testimony of one or more qualified expert witnesses, demonstrating that the
child's continued custody by the child's parent or Indian custodian is likely to result in serious emotional or
physical damage to the child.

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(b) The court must not order a termination of parental rights for an Indian child unless evidence beyond a
reasonable doubt is presented, including the testimony of one or more qualified expert witnesses,
demonstrating that the child's continued custody by the child's parent or Indian custodian is likely to result
in serious emotional or physical damage to the child.
(c) For a foster-care placement or termination of parental rights, the evidence must show a causal
relationship between the particular conditions in the home and the likelihood that continued custody of
the child will result in serious emotional or physical damage to the particular child who is the subject of
the child-custody proceeding.
(d) Without a causal relationship identified in paragraph (c) of this section, evidence that shows only the
existence of community or family poverty, isolation, single parenthood, custodian age, crowded or
inadequate housing, substance abuse, or nonconforming social behavior does not by itself constitute
clear and convincing evidence or evidence beyond a reasonable doubt that continued custody is likely to
result in serious emotional or physical damage to the child.

§ 23.122 Who may serve as a qualified expert witness?
(a) A qualified expert witness must be qualified to testify regarding whether the child's continued custody by
the parent or Indian custodian is likely to result in serious emotional or physical damage to the child and
should be qualified to testify as to the prevailing social and cultural standards of the Indian child's Tribe. A
person may be designated by the Indian child's Tribe as being qualified to testify to the prevailing social
and cultural standards of the Indian child's Tribe.
(b) The court or any party may request the assistance of the Indian child's Tribe or the BIA office serving the
Indian child's Tribe in locating persons qualified to serve as expert witnesses.
(c) The social worker regularly assigned to the Indian child may not serve as a qualified expert witness in
child-custody proceedings concerning the child.

§ 23.123 [Reserved]
VOLUNTARY PROCEEDINGS
§ 23.124 What actions must a State court undertake in voluntary proceedings?
(a) The State court must require the participants in a voluntary proceeding to state on the record whether the
child is an Indian child, or whether there is reason to believe the child is an Indian child, as provided in §
23.107.
(b) If there is reason to believe the child is an Indian child, the State court must ensure that the party seeking
placement has taken all reasonable steps to verify the child's status. This may include contacting the
Tribe of which it is believed the child is a member (or eligible for membership and of which the biological
parent is a member) to verify the child's status. As described in § 23.107, where a consenting parent
requests anonymity, a Tribe receiving such information must keep relevant documents and information
confidential.
(c) State courts must ensure that the placement for the Indian child complies with §§ 23.129-23.132.

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§ 23.125 How is consent obtained?
(a) A parent's or Indian custodian's consent to a voluntary termination of parental rights or to a foster-care,
preadoptive, or adoptive placement must be executed in writing and recorded before a court of
competent jurisdiction.
(b) Prior to accepting the consent, the court must explain to the parent or Indian custodian:
(1) The terms and consequences of the consent in detail; and
(2) The following limitations, applicable to the type of child-custody proceeding for which consent is
given, on withdrawal of consent:
(i)

For consent to foster-care placement, the parent or Indian custodian may withdraw consent for
any reason, at any time, and have the child returned; or

(ii) For consent to termination of parental rights, the parent or Indian custodian may withdraw
consent for any reason, at any time prior to the entry of the final decree of termination and have
the child returned; or
(iii) For consent to an adoptive placement, the parent or Indian custodian may withdraw consent for
any reason, at any time prior to the entry of the final decree of adoption, and have the child
returned.
(c) The court must certify that the terms and consequences of the consent were explained on the record in
detail in English (or the language of the parent or Indian custodian, if English is not the primary language)
and were fully understood by the parent or Indian custodian.
(d) Where confidentiality is requested or indicated, execution of consent need not be made in a session of
court open to the public but still must be made before a court of competent jurisdiction in compliance
with this section.
(e) A consent given prior to, or within 10 days after, the birth of an Indian child is not valid.

§ 23.126 What information must a consent document contain?
(a) If there are any conditions to the consent, the written consent must clearly set out the conditions.
(b) A written consent to foster-care placement should contain, in addition to the information specified in
paragraph (a) of this section, the name and birthdate of the Indian child; the name of the Indian child's
Tribe; the Tribal enrollment number for the parent and for the Indian child, where known, or some other
indication of the child's membership in the Tribe; the name, address, and other identifying information of
the consenting parent or Indian custodian; the name and address of the person or entity, if any, who
arranged the placement; and the name and address of the prospective foster parents, if known at the
time.

§ 23.127 How is withdrawal of consent to a foster-care placement achieved?
(a) The parent or Indian custodian may withdraw consent to voluntary foster-care placement at any time.
(b) To withdraw consent, the parent or Indian custodian must file a written document with the court or
otherwise testify before the court. Additional methods of withdrawing consent may be available under
State law.

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25 CFR 23.127(c)

(c) When a parent or Indian custodian withdraws consent to a voluntary foster-care placement, the court
must ensure that the Indian child is returned to that parent or Indian custodian as soon as practicable.

§ 23.128 How is withdrawal of consent to a termination of parental rights or adoption achieved?
(a) A parent may withdraw consent to voluntary termination of parental rights at any time prior to the entry of
a final decree of termination.
(b) A parent or Indian custodian may withdraw consent to voluntary adoption at any time prior to the entry of
a final decree of adoption.
(c) To withdraw consent prior to the entry of a final decree of adoption, the parent or Indian custodian must
file a written document with the court or otherwise testify before the court. Additional methods of
withdrawing consent may be available under State law.
(d) The court in which the withdrawal of consent is filed must promptly notify the person or entity who
arranged any voluntary preadoptive or adoptive placement of such filing, and the Indian child must be
returned to the parent or Indian custodian as soon as practicable.

DISPOSITIONS
§ 23.129 When do the placement preferences apply?
(a) In any preadoptive, adoptive, or foster-care placement of an Indian child, the placement preferences
specified in § 23.130 and § 23.131 apply.
(b) Where a consenting parent requests anonymity in a voluntary proceeding, the court must give weight to
the request in applying the preferences.
(c) The placement preferences must be applied in any foster-care, preadoptive, or adoptive placement unless
there is a determination on the record that good cause under § 23.132 exists to not apply those
placement preferences.

§ 23.130 What placement preferences apply in adoptive placements?
(a) In any adoptive placement of an Indian child under State law, where the Indian child's Tribe has not
established a different order of preference under paragraph (b) 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) Other members of the Indian child's Tribe; or
(3) Other Indian families.
(b) 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.
(c) The court must, where appropriate, also consider the placement preference of the Indian child or Indian
child's parent.

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

§ 23.132 How is a determination of “good cause” to depart from the placement preferences
made?
(a) If any party asserts that good cause not to follow the placement preferences exists, the reasons for that
belief or assertion must be stated orally on the record or provided in writing to the parties to the childcustody proceeding and the court.
(b) The party seeking departure from the placement preferences should bear the burden of proving by clear
and convincing evidence that there is “good cause” to depart from the placement preferences.
(c) A court's determination of good cause to depart from the placement preferences must be made on the
record or in writing and should be based on one or more of the following considerations:
(1) The request of one or both of the Indian child's parents, if they attest that they have reviewed the
placement options, if any, that comply with the order of preference;
(2) The request of the child, if the child is of sufficient age and capacity to understand the decision that
is being made;
(3) The presence of a sibling attachment that can be maintained only through a particular placement;
(4) The extraordinary physical, mental, or emotional needs of the Indian child, such as specialized
treatment services that may be unavailable in the community where families who meet the
placement preferences live;
(5) The unavailability of a suitable placement after a determination by the court that a diligent search
was conducted to find suitable placements meeting the preference criteria, but none has been
located. For purposes of this analysis, the standards for determining whether a placement is

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unavailable must conform to the prevailing social and cultural standards of the Indian community in
which the Indian child's parent or extended family resides or with which the Indian child's parent or
extended family members maintain social and cultural ties.
(d) A placement may not depart from the preferences based on the socioeconomic status of any placement
relative to another placement.
(e) A placement may not depart from the preferences based solely on ordinary bonding or attachment that
flowed from time spent in a non-preferred placement that was made in violation of ICWA.

ACCESS
§ 23.133 Should courts allow participation by alternative methods?
If it possesses the capability, the court should allow alternative methods of participation in State-court childcustody proceedings involving an Indian child, such as participation by telephone, videoconferencing, or other
methods.

§ 23.134 Who has access to reports and records during a proceeding?
Each party to an emergency proceeding or a foster-care-placement or termination-of-parental-rights proceeding
under State law involving an Indian child has a right to timely examine all reports and other documents filed or
lodged with the court upon which any decision with respect to such action may be based.

§ 23.135 [Reserved]
POST-TRIAL RIGHTS & RESPONSIBILITIES
§ 23.136 What are the requirements for vacating an adoption based on consent having been
obtained through fraud or duress?
(a) Within two years after a final decree of adoption of any Indian child by a State court, or within any longer
period of time permitted by the law of the State, the State court may invalidate the voluntary adoption
upon finding that the parent's consent was obtained by fraud or duress.
(b) Upon the parent's filing of a petition to vacate the final decree of adoption of the parent's Indian child, the
court must give notice to all parties to the adoption proceedings and the Indian child's Tribe and must
hold a hearing on the petition.
(c) Where the court finds that the parent's consent was obtained through fraud or duress, the court must
vacate the final decree of adoption, order the consent revoked, and order that the child be returned to the
parent.

§ 23.137 Who can petition to invalidate an action for certain ICWA violations?
(a) Any of the following may petition any court of competent jurisdiction to invalidate an action for foster-care
placement or termination of parental rights under state law where it is alleged that 25 U.S.C. 1911, 1912,
or 1913 has been violated:
(1) An Indian child who is or was the subject of any action for foster-care placement or termination of
parental rights;
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25 CFR 23.137(a)(2)

(2) A parent or Indian custodian from whose custody such child was removed; and
(3) The Indian child's Tribe.
(b) Upon a showing that an action for foster-care placement or termination of parental rights violated any
provision of 25 U.S.C. 1911, 1912, or 1913, the court must determine whether it is appropriate to
invalidate the action.
(c) To petition for invalidation, there is no requirement that the petitioner's rights under ICWA were violated;
rather, a petitioner may challenge the action based on any violations of 25 U.S.C. 1911, 1912, or 1913
during the course of the child-custody proceeding.

§ 23.138 What are the rights to information about adoptees' Tribal affiliations?
Upon application by an Indian who has reached age 18 who was the subject of an adoptive placement, the court
that entered the final decree of adoption must inform such individual of the Tribal affiliations, if any, of the
individual's biological parents and provide such other information necessary to protect any rights, which may
include Tribal membership, resulting from the individual's Tribal relationship.

§ 23.139 Must notice be given of a change in an adopted Indian child's status?
(a) If an Indian child has been adopted, the court must notify, by registered or certified mail with return receipt
requested, the child's biological parent or prior Indian custodian and the Indian child's Tribe whenever:
(1) A final decree of adoption of the Indian child has been vacated or set aside; or
(2) The adoptive parent has voluntarily consented to the termination of his or her parental rights to the
child.
(b) The notice must state the current name, and any former name, of the Indian child, inform the recipient of
the right to petition for return of custody of the child, and provide sufficient information to allow the
recipient to participate in any scheduled hearings.
(c) A parent or Indian custodian may waive his or her right to such notice by executing a written waiver of
notice and filing the waiver with the court.
(1) Prior to accepting the waiver, the court must explain the consequences of the waiver and explain
how the waiver may be revoked.
(2) The court must certify that the terms and consequences of the waiver and how the waiver may be
revoked were explained in detail in English (or the language of the parent or Indian custodian, if
English is not the primary language), and were fully understood by the parent or Indian custodian.
(3) Where confidentiality is requested or indicated, execution of the waiver need not be made in a
session of court open to the public but still must be made before a court of competent jurisdiction in
compliance with this section.
(4) The biological parent or Indian custodian may revoke the waiver at any time by filing with the court a
written notice of revocation.
(5) A revocation of the right to receive notice does not affect any child-custody proceeding that was
completed before the filing of the notice of revocation.

RECORDKEEPING
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25 CFR 23.140

§ 23.140 What information must States furnish to the Bureau of Indian Affairs?
(a) Any State court entering a final adoption decree or order in any voluntary or involuntary Indian-child
adoptive placement must furnish a copy of the decree or order within 30 days to the Bureau of Indian
Affairs, Chief, Division of Human Services, 1849 C Street NW, Mail Stop 3645 MIB, Washington, DC 20240,
along with the following information, in an envelope marked “Confidential”:
(1) Birth name and birthdate of the Indian child, and Tribal affiliation and name of the Indian child after
adoption;
(2) Names and addresses of the biological parents;
(3) Names and addresses of the adoptive parents;
(4) Name and contact information for any agency having files or information relating to the adoption;
(5) Any affidavit signed by the biological parent or parents asking that their identity remain confidential;
and
(6) Any information relating to Tribal membership or eligibility for Tribal membership of the adopted
child.
(b) If a State agency has been designated as the repository for all State-court adoption information and is
fulfilling the duties described in paragraph (a) of this section, the State courts in that State need not fulfill
those same duties.
[59 FR 2256, Jan. 13, 1994, as amended at 83 FR 55268, Nov. 5, 2018]

§ 23.141 What records must the State maintain?
(a) The State must maintain a record of every voluntary or involuntary foster-care, preadoptive, and adoptive
placement of an Indian child and make the record available within 14 days of a request by an Indian
child's Tribe or the Secretary.
(b) The record must contain, at a minimum, the petition or complaint, all substantive orders entered in the
child-custody proceeding, the complete record of the placement determination (including, but not limited
to, the findings in the court record and the social worker's statement), and, if the placement departs from
the placement preferences, detailed documentation of the efforts to comply with the placement
preferences.
(c) A State agency or agencies may be designated to be the repository for this information. The State court or
agency should notify the BIA whether these records are maintained within the court system or by a State
agency.

§ 23.142 How does the Paperwork Reduction Act affect this subpart?
The collections of information contained in this part have been approved by the Office of Management and Budget
under 44 U.S.C. 3501 et seq. and assigned OMB Control Number 1076-0186. Response is required to obtain a
benefit. A Federal agency may not conduct or sponsor, and you are not required to respond to, a collection of
information unless the form or regulation requesting the information displays a currently valid OMB Control
Number. Send comments regarding this collection of information, including suggestions for reducing the burden, to
the Information Collection Clearance Officer—Indian Affairs, 1849 C Street NW., Washington, DC 20240.

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EFFECTIVE DATE
§ 23.143 How does this subpart apply to pending proceedings?
None of the provisions of this subpart affects a proceeding under State law for foster-care placement, termination
of parental rights, preadoptive placement, or adoptive placement that was initiated prior to December 12, 2016, but
the provisions of this subpart apply to any subsequent proceeding in the same matter or subsequent proceedings
affecting the custody or placement of the same child.

SEVERABILITY
§ 23.144 What happens if some portion of this part is held to be invalid by a court of competent
jurisdiction?
If any portion of this part is determined to be invalid by a court of competent jurisdiction, the other portions of the
part remain in effect. For example, the Department has considered separately whether the provisions of this part
apply to involuntary and voluntary proceedings; thus, if a particular provision is held to be invalid as to one type of
proceeding, it is the Department's intent that it remains valid as to the other type of proceeding.

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