Breaking: BIA Publishes Final ICWA Rule
Underscoring Congress’s intent to protect the cohesiveness of Indian children, families and communities in state welfare proceedings, Acting Assistant Secretary – Indian Affairs Lawrence S. Roberts today announced that the agency has published an updated final rule in the implementation of the Indian Child Welfare Act. Roberts said the 360-page rule will provide a more consistent interpretation of the 38-year-old statute “regardless of the child welfare worker, judge or state involved.”
“We received thousands of comments from the public during the rulemaking process?more than three times the number of comments than any other rule we’ve published,” said Roberts at the press conference announcing the rule this afternoon. “An overwhelming number of those comments came from the tribes, so it’s clearly an issue of public interest. And we think this rule will help state agencies and courts in the application of the law and provide more consistency across the board.”
Roberts said the new rule advances the highest ideals of the federal trust responsibility in protecting and promoting cohesiveness for Indian children and their families. While praising the work of state courts across the country who work tirelessly to ensure the implementation of ICWA, he said there are still gaps in the consistency and application of ICWA in state proceedings.
“The final rule builds upon the work of tribes and states by clarifying the Indian Child Welfare Act’s requirements, promoting consistency in Indian child-placement proceedings, and ensuring that regardless of the state court forum, children and their parents receive the active efforts envisioned by Congress to maintain family and community,” Roberts said. “Child welfare workers, state court judges and state agencies deserve clear rules as they work with Native families and tribes to implement the protections of the law. This rule promotes family and community by ensuring that if a Native child has been removed from their home previously, they will have a pathway for reunification with their family.”
Under the new rule, all state courts in foster-care, termination-of-parental-rights, and adoption proceedings will now be required to ask whether the child is an “Indian child” under the definitions articulated in ICWA and subject to the law’s procedures; prompt notice of involuntary proceedings; and minimizing unnecessary separations of Indian children from their families. Additionally, the rule requires that “active efforts” will replace “reasonable efforts” with the overall goal of reunifying the child with his or her family.
“Reunification with a child’s family is a standard the United States strives for in child welfare,” said Roberts. “It’s the gold standard and best practice and ICWA is the minimum federal standard, because tribal families continue to be broken up because of inconsistent application of the law. We are concerned that without these federal regulations that the disparities among Indian children in state custody may continue.”
Notably, Roberts said the final rule also addresses the wishes of Indian parents wanting to place their children for adoption, making it clear that the decision to place children for voluntary adoptions lies with the child’s parents. As well, the rule includes a number of new provisions which respect and enforce the confidentiality and privacy of all Indian children in state court proceedings.
The BIA has been working on strengthening the federal statute for several years. In 2014, the Department conducted five listening sessions with tribes, judicial organizations and child welfare professionals to determine whether the BIA ICWA Guidelines for State Courts should be updated and, if so, what changes should be made. The agency received hundreds of comments from tribes, child welfare professionals and state court judges, which overwhelmingly recommended updated guidelines.
That November, the Attorney General’s Advisory Committee on American Indian and Alaska Native Children Exposed to Violence also recommended that the Department of the Interior issue new regulations in order to better implement the law. Tribes and other commenters were near-universal in noting the lack of compliance with and inconsistent adherence to the guidelines in state courts, calling for the promulgation of new regulations for a more consistent interpretation of ICWA.
Subsequently, in February 2015, the agency issued revised Guidelines for State Courts and Agencies in Indian Child Custody Proceedings—the first such update since the guidelines were originally issued when ICWA (Public Law 95-608) was passed in 1978.
A month later, the agency, then headed by former Assistant Secretary Kevin Washburn, announced its intention to seek a federal rule to reinforce the 38-year-old federal statute in state courts across the country, where Indian children continue to be removed from their families and communities at far higher rates than their non-Indian peers.
Public meetings and tribal consultations were held in locations throughout the country, including Portland, Oregon; Rapid City, South Dakota; Albuquerque, New Mexico; Prior Lake, Minnesota; Tulsa, Oklahoma, and by phone conference. The hearings were attended by hundreds of tribal members, attorneys, social workers, adult pre- and post-ICWA adoptees, and tribal leaders, as well as lawyers representing the American Academy of Adoption Attorneys.
At times contentious and emotionally-charged, the ICWA public meetings were crowded and sometimes standing-room-only, drawing sharp comments from the tribes and members of the adoption industry, at odds over what constitutes the “best interests” for Native children. Often, complained tribal leaders, they are rarely given adequate notice or respect in court proceedings involving their children in ICWA proceedings. Conversely, members of the adoption industry responded with similar talking points that ICWA is “bad for children.”
For months, as the two sides skirmished in the hearings, the BIA continued gathering input and comments toward publishing a final rule. In anticipation of the final rule, the Phoenix, Arizona-based Goldwater Institute filed suit in federal court in July 2015 seeking to overturn the Indian Child Welfare Act because it contends that the 38-year-old statute is unconstitutional.
The new federal regulations provide a more consistent interpretation of and promote compliance with the Act by incorporating standard procedures and requirements for state courts and child welfare agencies in Indian child custody proceedings. Roberts said that although the final rule is being published today, it will not go into effect for 180 days in order to give time to the tribes, state agencies and courts to familiarize themselves with the new rule and for training and technical assistance.
“ICWA was designed to safeguard Native children from undue separation from their families and cultural identity. This rule will achieve consistent implementation of a law that remains critical to protecting the best interest of Native children and promoting successful Native communities,” said Secretary of the Interior Sally Jewell, who serves as chair of the President’s White House Council on Native American Affairs. “It is in a child’s best interest to keep their family intact when it can be done safely, and provide pathways to connect with the child’s larger family and community. This rule reflects the highest standards in child welfare.”