In order for the Act to apply, the proceeding must involve an Indian child who is not under the exclusive jurisdiction of a tribal court. An Indian child is an un-married person under the age of 18 that is a member of a federally recognized tribe or could be eligible for membership. A tribal court has exclusive jurisdiction if the child is domiciled on the Indian reservation.
The Act applies to proceedings such as termination of parental rights and foster care placement. For the proceeding to be considered a "child custody proceeding", the parent must not be able to have the child return on demand. The Act does not apply to custody proceedings in divorce cases.
There are certain procedural protections in cases involving the Indian Welfare Act such as right to notice, adjournment, transfer to a tribal court, counsel, intervention and immediate return of the child. The tribe of the child must receive notice of the proceeding along with the parent of the child.
The Act requires a higher standard of proof than the typical state court for child custody proceedings involving an Indian child, because the Act was created to ensure that any removal of an Indian child is necessary and the tribes rights are protected. The burden is "clear and convincing" evidence including the testimony of one expert witness. There must be evidence that continued custody with the parent will result in serious emotional or physical damage to the child.