On Tuesday, Assistant Secretary – Indian Affairs Kevin K. Washburn announced that the Bureau of Indian Affairs has published revised, sweeping new guidelines to ensure the rights and protections of Native families and children under the Indian Child Welfare Act (ICWA). In remarks at the winter session of the National Congress of American Indians, Washburn said that updating Guidelines for State Courts and Agencies in Indian Child Custody Proceedings in the Federal Register had become necessary due to the continued misapplication and noncompliance of ICWA in state and federal courts since it was first published in 1979.
Working in collaboration with other government agencies to press for the full implementation of the federal law, Washburn confirmed that the BIA is redoubling its efforts to prevent the break-up of Indian families and the further destruction of tribal communities.
"Consistent with the direction of the President in creating the White House Council on Native American Affairs, we are taking an ‘all-of-government’ approach to ICWA,” Washburn told Indian Country Today Media Network. “Recently, the Department of Justice advised tribes that it wishes to be notified of cases in state courts to consider participating in by filing amicus briefs in support of ICWA. Both the Department of the Interior and Department of Justice have been meeting with the Administration for Children and Families at Health and Human Services to consider ways in which their programs, such as the IV-E funding program, can be used to help insure ICWA compliance in states as well as strengthen tribal capacity in child welfare. We are developing strategies to work together to protect Indian children.”
In his remarks, Washburn referred to Adoptive Couple v Baby Girl (the Baby Veronica case) and ongoing ICWA violations in South Dakota as crucial turning points that prompted the tribes and government agencies to find a better way to reinforce the federal statutes, which were enacted in 1978 due to a high percentage of the removals of Native children from their families, many of whom wound up in non-Indian homes hundreds of miles away from their communities.
In June 2013, when the Supreme Court rendered its decision in Baby Veronica, Washburn said tribal leaders across the country began looking for better ways to implement and enforce federal laws designed to protect one of the country’s smallest minorities. “We decided that we needed to do something. We cannot reverse the Supreme Court [decision], but realized that we had some options available.”
Subsequently, in 2014 the BIA held five listening sessions across the country—three with tribes and two with judicial organizations—to assess the situation and gather comments on how to address ongoing ICWA violations in foster care and adoptions across the country.
South Dakota, in particular, has been a concern to the BIA and other federal agencies for years. In spite of the provisions in ICWA, nearly 750 Indian children annually have continued to be swept into state custody and placed in non-Indian foster homes at a ratio of 11:1 to their peers. Additionally, Indian children comprise approximately 53 percent of the total number of children in foster care, even though they only make up nine percent of the total child population of South Dakota. The state department of social services, the judges in the seventh circuit and the state’s attorney are currently facing an historic class action suit, Oglala v. Van Hunnik, in federal court over numerous procedural and civil rights violations under ICWA.
“The result was a lot of broken hearts,” said Washburn. “And it was not just the parents, grandparents and communities—it was the kids too. As adults, these kids struggle with having been uprooted and they have higher rates of depression and suicide than other kids.”
Immediately after the announcement, tribes and Indian child welfare advocates across the country applauded the new direction by the government in enforcing the original intent and purpose of ICWA.
“The Lakota People’s Law Project (LPLP) is heartened by the release of updated ICWA guidelines, given the fact that the state of South Dakota has been willfully and flagrantly violating this important federal law for at least the past 30 years,” said LPLP attorney Chase Iron Eyes in a statement to ICTMN. “During a decade of working on ICWA-related issues, the Lakota People’s Law Project revealed the deep-seated problems of continual and widespread ICWA violations and we think this will provide clarity on many important areas of ICWA’s application. We want to thank the Administration for their hard work and dedication to Native children and families. It is our hope that this is just one of many efforts to strengthen ICWA implementation in the next couple of years.”
Iron Eyes said the proliferation of violations in South Dakota is primarily because of enormous financial benefits created by cycling Indian children through public and private foster care services and by classifying every Indian child as “special needs,” thereby reaping more federal funds for their cases. This, he said, created a “perverse incentive” for a system that preyed on the most vulnerable population in the United States.
Last year, the LPLP assisted the South Dakota tribes in establishing their own child and family services under the Title IV-E Federal Foster Care Program through the Office of the Administration for Children and Families. In December, the Oglala and the Standing Rock Sioux Tribes received funding for planning grants, with the ultimate goal of providing these services “by Natives for Natives.”
“The tribes must be directly funded to run their own Child and Family Service Programs,” said Iron Eyes. “Further, states that refuse or fail to comply with ICWA must be punished with fines, withholding of funds or possible civil rights violations and the federal government must remain ever vigilant against the abuse of power that continues to run rampant in South Dakota.”
According to the BIA, hundreds of individual Indian people and organizations representing Indian child welfare advocacy responded to the agency’s request for comments last year. The overwhelming majority of the respondents asked the agency to update its ICWA guidelines, which had not been revised since 1979. Included in their comments were suggested changes and revisions to the guidelines, which have been all but ignored by state social service agencies and courts across the country for years.
The updated guidelines, said Washburn, will provide much-needed clarity and comprehensive direction in for determining whether a child is an Indian child, identifying the child’s tribe, and notifying its parent and tribe as early as possible before determining placement. Further, they will provide clear instruction on the application of “active efforts” to prevent the breakup of the Indian family and provisions which carry the presumption that ICWA’s placement preferences are in the best interests of Indian children.
“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,” said Washburn. “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.”