On Wednesday, June 8, the Bureau of Indian Affairs released a long awaited set of regulations or final rule on the Indian Child Welfare Act.  The Final Rule   which will be implemented in 180 days, is the result of more than 2000 comments submitted after a proposed rule had been published in March 2015.

CWLA issued a statement that said in part:

“The regulations put forward a standard of practice for Indian children and families that is consistent with other federal law and nationally-recognized practice standards (including CWLA’s) for all children.  As part of a coalition of 18 nationally-recognized child advocacy organizations, we recognize ICWA as the “gold standard” in child welfare practice…With these regulations, CWLA will redouble its work to ensure that service providers fully implement ICWA and the CWLA standards of excellence in child welfare.”

The Indian Child Welfare Act (ICWA) was enacted by Congress in 1978 in response to the tragic history from the late 19th and early 20th centuries when it was federal policy that forced Indian children to leave their homes and tribes to attend boarding schools. Later from 1958 to 1967, the Child Welfare League of America (CWLA) was part of a national policy with BIA to place Native American children with white families.  A history that CWLA formally apologized for in 2001.

The BIA outlines ICWA’s main goals to include: recognizing Tribal jurisdiction over decisions for their Indian children; establishing minimum federal standards for the removal of Indian children from their families; establishing preferences for placement of Indian children with extended family or other listed foster or adoptive homes; and instituting protections to ensure that birth parents’ voluntary relinquishments of their children are truly voluntary.

Some current critics have attacked ICWA through verbal, anecdotal and legal assaults as harming children through delays and improper placements.  A 2005 GAO Report, however, did not find evidence of such harm, indicating that “no consistent differences when comparing the length of time they

[tribal children] spent in foster care compared to Caucasian or other minority children who exited foster care in fiscal year 2003.”

Key points in the rule:

    • Require state courts to ask, in every child custody proceeding, whether the Act applies.
    • Establish limits on the duration of emergency placements before full ICWA rights are afforded to parents or Indian custodians and Tribes.
    • Require notice to the parents and Tribe of involuntary proceedings.
    • Clarify the procedures for transfer to a Tribal court and establish parameters of what is “good cause” to deny transfer.
    • Clarify who may serve as a qualified expert witness.Clarify when placement preferences apply and what placement preferences apply in foster care, preadoptive, and adoptive placements, and establish parameters of what is “good cause” to depart from the placement preferences.
    • Clarify requirements for voluntary proceedings.
    • Confirm adult adoptees’ rights to information about their Tribal affiliation.
    • Identify records States and BIA must maintain regarding implementation of ICWA.
    • Highlight the statutory right to invalidate an action taken in violation of ICWA.

 

About the Author:

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

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