ICWA and Wisconsin Indian Child Welfare Act (WICWA) Guardianship Rules

When ICWA and WICWA Apply to a Guardianship Case

If the child is an Indian child — a member of a federally recognized tribe, or eligible for membership and the biological child of a member — ICWA and Wisconsin's Indian Child Welfare Act (WICWA, Wis. Stat. § 48.028) apply when the guardianship is an Indian child-custody proceeding. That includes a removal for placement in a guardian's home when the parent or Indian custodian cannot have the child returned upon demand. A violation can allow an eligible child, parent, Indian custodian, or tribe to petition to invalidate certain orders; it does not automatically void every proceeding.

The Mandatory Tribal Inquiry

The § 48.9795 petition must state whether the child may be subject to ICWA/WICWA and identify any known tribe. The court must also ask each participant on the record whether they know or have reason to know the child is an Indian child. For an Indian child, use the ICWA version of the petition, Form IW-1501.

If there is reason to know the child may be an Indian child, the court must notify the child's tribe. That triggers formal tribal notice requirements before the case can proceed.

Tribal Notice Requirements

Under both federal ICWA and Wisconsin's WICWA, notice must be sent via registered mail with return receipt requested to three parties:

1. The child's parents or Indian custodian
2. The child's tribe (or the Bureau of Indian Affairs if the tribe can't be identified)
3. Any other tribe where the child may be eligible for membership

This is stricter than the standard service rules for a non-ICWA guardianship. Regular personal service or certified mail isn't sufficient — the statute specifically requires registered mail for tribal notice.

The tribe has the right to intervene in the proceeding. If the child is not domiciled or residing on the tribe's reservation, the tribe may petition to transfer jurisdiction to tribal court. The state court must grant a transfer unless either parent objects, the tribal court declines, or good cause exists to deny it. A child who resides or is domiciled on the reservation is generally within the tribe's exclusive jurisdiction.

Higher Evidentiary Standards

ICWA and WICWA raise the evidentiary bar for out-of-home placement of an Indian child:

• Foster care placement or guardianship requires clear and convincing evidence, including testimony from a qualified expert witness, that continued custody by the parent is likely to result in serious emotional or physical damage to the child. The party seeking placement must also show by clear and convincing evidence that active efforts to prevent the breakup of the family were made and proved unsuccessful.
• Involuntary termination of parental rights requires clear and convincing evidence of state-law grounds and clear and convincing evidence of unsuccessful active efforts. In an ICWA case, the court must also find beyond a reasonable doubt, with qualified expert testimony, that continued parental custody is likely to cause serious emotional or physical damage to the child.

The "qualified expert witness" requirement means someone with specific knowledge of the tribe's customs and child-rearing practices must testify — not just any social worker or psychologist.

Placement Preferences

For an out-of-home care placement, Wisconsin's WICWA establishes this preference hierarchy:

1. A member of the child's extended family
2. A foster home licensed, approved, or specified by the child's tribe
3. An Indian foster home licensed by an authorized non-Indian licensing authority
4. A group home or residential care center for children and youth approved by the tribe or operated by an Indian organization with a suitable program

A relative caregiver who is a member of the child's extended family already sits at the top of the placement preference, which strengthens a kinship guardianship petition in an ICWA case.

Practical Implications for Kinship Caregivers

For most kinship caregivers, the key steps are straightforward once you know the requirements:

• Disclose whether there is reason to know the child is an Indian child and identify any known tribe — failure to follow required ICWA/WICWA protections can support a petition to invalidate certain orders
• Allow time for tribal notice — the registered mail and tribal response period adds weeks to the standard timeline
• Work with the tribe — tribal social services often support kinship placements and can provide resources that help the case
• Document everything — proof that notice was properly served is critical, and the court will want to see the return receipts

Get the Full Filing Process

Our Wisconsin Guardianship and Custody Court Process Guide covers WICWA requirements alongside the standard § 48.9795 process, so you can follow the correct procedure from the start without backtracking.

See more Wisconsin guides →