ICWA and Your Family

This page is general information, not legal advice. If your family is involved in a child welfare, foster care, guardianship, or adoption case, please talk with a lawyer as soon as you can. In a California dependency (child protective services) case, parents and guardians whose children have been removed can ask the court or the social worker for a court-appointed attorney.

This page is for Muwekma Ohlone families, Ohlone families, families from other California tribes that are not federally recognized, and the wider California Indian community. It explains what the Indian Child Welfare Act (ICWA) does, where its limits are, and what California law allows when a family's tribe is not federally recognized.

What ICWA is

The Indian Child Welfare Act is a federal law passed in 1978 (25 U.S.C. § 1901 and following). Congress passed it after studies showed that large numbers of Native children were being taken from their families and communities by state child welfare and private adoption agencies. Its stated purpose is "to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families."

ICWA sets minimum federal standards for state court "child custody proceedings" involving an Indian child. In California, that includes dependency (child protective services) cases, some delinquency cases, guardianships, adoptions, and some family court cases. According to California Indian Legal Services, ICWA does not apply to divorce cases or to custody disputes between the child's parents.

In June 2023, in Haaland v. Brackeen, the U.S. Supreme Court rejected constitutional challenges to ICWA. The law remains in effect.

When ICWA applies

ICWA applies when the child is an "Indian child." Under the federal definition, that is an unmarried person under 18 who either:

  • is a member of a federally recognized tribe, or
  • is eligible for membership in a federally recognized tribe and is the biological child of a member.

For ICWA purposes, an "Indian tribe" means a federally recognized tribe. Having Native ancestry alone is not enough.

When ICWA applies, it requires, among other things:

  • Notice to the child's tribe and parents about the case.
  • The tribe's right to intervene and take part in the case as a party, and in some cases to ask that the case be moved to tribal court.
  • "Active efforts" to provide services that help prevent the breakup of the Indian family.
  • Placement preferences that favor the child's extended family, members of the child's tribe, and other Indian families.
  • Higher legal standards, including testimony from a qualified expert witness, before a child can be placed in foster care or parental rights can be ended.

How California handles ICWA

California has written ICWA's requirements into its own Welfare and Institutions Code, Family Code, and Probate Code. This is often called "Cal-ICWA." State laws passed in 2006 (SB 678) and 2018 (AB 3176) brought California law in line with ICWA and the 2016 federal ICWA regulations.

In California child custody cases, the court and the social worker or probation officer must ask early on whether the child may be an Indian child. In juvenile cases, parents are asked to complete form ICWA-020, Parental Notification of Indian Status. Tell your social worker, your attorney, and the court about all of your child's Native ancestry, including any connection to a federally recognized tribe through either parent. If the child is connected to a federally recognized tribe, ICWA may apply through that tribe.

If your tribe is not federally recognized

The Muwekma Ohlone Tribe of the San Francisco Bay Area is not currently federally recognized. That means:

  • Federal ICWA does not apply when a child's only tribal connection is to a tribe that is not federally recognized, including Muwekma.
  • California law does give the court some discretion. Under Welfare and Institutions Code section 306.6, in a dependency case involving a child who would be an Indian child except that the child's tribe is not federally recognized, the court may allow the tribe the child descends from to participate, if the tribe asks.
  • If the court agrees, the tribe may, with the court's consent: be present at hearings, address the court, request and receive notice of hearings, ask to examine court documents, present relevant information, submit written reports and recommendations, and do other things the court requests or approves.
  • The law says the purpose is to help the court decide what is best for the child, for example by telling the court about placement options within the extended family or tribal community, about services available to the child and parents as Indians, and about the family's unique interests as Indians.
  • Section 306.6 does not make ICWA apply. The law says so directly. The ICWA protections listed above, such as placement preferences and active efforts, are not legally required in these cases.
  • The tribe is not automatically notified. Unlike a federally recognized tribe, a tribe that is not federally recognized must ask the court for permission to participate.
  • How a tribe asks: Since January 1, 2024, California Rule of Court 5.530(g) says a tribe may ask to participate using form ICWA-042, Request for Tribal Participation. For a child described in section 306.6, the rule says the request should be approved unless the court finds that the tribe's participation would not help it make decisions in the child's best interest. The tribe does not become a party unless the court orders it.
  • Family court: Family Code section 185 uses similar language for custody proceedings. Ask a lawyer how it applies to your case.

What this means in practice: If a Muwekma Ohlone child, or a child from another California tribe that is not federally recognized, is involved in a dependency case, the family should tell the social worker, their attorney, and the court about the child's tribal connection early, and contact the Tribe promptly so the Tribe can decide whether to ask the court for permission to participate. To reach the Muwekma Ohlone Tribe, please use our contact page.

Guidance that goes beyond the law

The Judicial Council of California's guide Following the Spirit of the Indian Child Welfare Act encourages agencies to connect children and families with their tribe and local Native resources regardless of federal recognition status, and to consider placements consistent with ICWA's preferences even when ICWA does not technically apply. This is guidance, not a legal requirement, but families and their attorneys may find it useful.

Rights for every child in foster care

California's Foster Care Bill of Rights (Welfare and Institutions Code section 16001.9) applies to all children in foster care. It includes the right to attend religious services, activities, and ceremonies of the child's choice, including traditional Native American religious practices, and to take part in cultural activities. Some other rights in that law apply only to children who meet the legal definition of an Indian child. Concerns about a foster child's rights can be raised with the California Foster Care Ombudsperson.

Where families can find help

  • California Indian Legal Services (CILS): Legal help on matters of federal Indian law. CILS says it provides free representation to people at or below the federal poverty level, and in limited cases lower-cost, fee-for-service help. CILS says you do not have to be enrolled, and that it can help members of, or people affiliated with, California tribes that are not federally recognized when the case involves federal Indian law. CILS field offices: Escondido (800) 743-8941, Sacramento (800) 829-0284, Bishop (800) 736-3582, and Eureka (800) 347-2402. Check the CILS offices page to see which office serves your county. CILS also publishes plain-language guides: What Is the Indian Child Welfare Act? and When Does ICWA Apply?
  • American Indian Child Resource Center (AICRC), ICWA Family Services (Oakland): Serves American Indian community members across the greater Oakland and San Francisco Bay Area. Its ICWA support includes helping establish family connections, referring families to culturally appropriate resources, providing direct support services, and advocating in court. Phone: 510-208-1870. Its page does not state a federal-recognition requirement, so please ask about eligibility.
  • Statewide Directory of Services for Native American Families: A California Courts directory of services for Native children and families, searchable by county and type of service.
  • California Department of Social Services, Office of Tribal Affairs: (916) 651-2787, TribalAffairs@dss.ca.gov. For ICWA questions, CDSS lists ICWA@dss.ca.gov. CDSS also runs an ICWA Hotline (1-844-796-6283), but in its current phase it takes reports from tribal representatives about county ICWA compliance, not from individual families.

Official information

Please read

This page is not a substitute for a lawyer or for guidance from the Tribe. Laws and court rules change, and every case is different. Listings were checked on November 10, 2026. The Foundation may add Tribe-specific contacts to this page in the future. If you have questions, please contact us.