On February 25 the Bureau of Indian affairs in the Interior Department issued new guidelines and regulations regarding the Indian Child Welfare Act (ICWA). The guidelines are the first update since 1979 shortly after the law was enacted by Congress.

These updated guidelines are intended to provide procedures and best practices for use in Indian child welfare proceedings in state courts. The new guidelines are in response to comments made during listening sessions, throughout 2014, and recommendations of the Attorney General’s Advisory Committee on American Indian/Alaska Native Children Exposed to Violence.

Assistant Secretary for Indian Affairs Kevin K. Washburn indicated that the BIA guidelines are intended to  help to prevent the further dissolution of American Indian and Alaska Native families through the misapplication of the Indian Child Welfare Act of 1978 (Public Law 95608).  In announcing the release he said:
“For too many years, some of Indian Country’s youngest and most vulnerable members have been removed from their families, their cultures, and their identities.  Congress worked hard to address this problem by enacting the Indian Child Welfare Act.  Yet, today too many people are unaware of this important law and, unfortunately, there are some that work actively to undermine it.  Our updated guidelines for state courts will give families and tribal leaders comfort that the Obama Administration is working hard to provide better clarity so that the courts can carry out Congress’ intent to protect tribal families, preserve tribal communities, and promote tribal continuity now and into the future.”
After ICWA’s July 1978 enactment the Interior Department issued regulations within a year that addressed notice procedures for involuntary child custody proceedings involving Indian children, as well as governing the provision of funding for and administration of Indian child and family service programs created by ICWA.   Although there have been significant developments in ICWA implementation and child welfare practices, the guidelines have not been updated since they were originally published.

In 2014, the Department invited comments on the need for updates and what they should include. They also held comment sessions with several critical parties including state courts and key tribal organizations including the National Indian Child Welfare Association, and the National Congress of American Indians. There was strong support for revisions.

In explaining the new guidelines the Department explains that, “Recognizing the important role that child welfare agencies play in ICWA compliance, these updated guidelines broaden the audience of the guidelines to include both state courts and any agency or other party seeking placement of an Indian child. …The guidelines also establish that agencies and courts should document their efforts to comply with ICWA.”

The guidelines can be found in the February 25, Federal Register.

About the Author:

John Sciamanna is CWLA's Vice President of Public Policy.

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