Indian Child Welfare Act (ICWA) Rulings Released June 2016

There was a period in American history where American Indians and Native children were taken away from their families and placed in non-native homes and institutions at staggering rates. Estimates range that one out of every four Native children were removed from their families by public and private agencies, isolating them from their identity and culture. In response to this tragedy, Congress passed the Indian Child Welfare Act (ICWA) in 1978. The purpose of this federal development was “to protect the best interests of Indian Children and to promote the stability and security of Indian tribes and families.” Signed by President Jimmy Carter, this Act established minimum standards for the removal of Indian children and required placement of these children in homes at all costs that reflect the unique values of their culture. ICWA also acknowledges tribal sovereign authority in Indian child welfare cases by giving tribes the right to intervene in state court proceedings as full parties.

Native American children continue to enter the child welfare system at high rates. It is critical to support tribal communities to prevent this crisis so that children can avoid the significant trauma that can be inflicted upon them when they are removed from their home environment. To strengthen the original ICWA provisions, ICWA released the first legally binding federal regulations on June 8, 2016. These new regulations go into effect 180 days after the release date, giving private agencies, state agencies, and state courts time to prepare for the implementation of these changes. Most importantly, the new requirements ensure that the Department of Health and Human Services is conscious of fundamental elements of human life – children, identity, familial ties, and community – in child custody matters.

A few of the new regulations include:

·      The final rule clarifies terms such as “domicile” in statue; therefore, state agencies and courts can now determine with confidence who has jurisdiction over a case involving a child of Indian descent to reduce the need for delays, duplication, and appeals in the judicial process.

·      The rule allows for notice of involuntary proceedings by certified mail, return receipt request, as a less costly alternative to registered mail, return receipt requested. In addition, the final rule no longer requires both the originating and the receiving state in an interstate transfer to provide notice.

·      The rule provides flexibility to allow local procedures for emergency removal and placement, as long as ICWA’s statutory standard for emergency removal and placement is met.

·      New ICWA regulations establish standards of whether a cause exists to deny a transfer of proceedings to a Tribal court.

·      ICWA clarifies what placement preferences apply in foster care, pre-adoptive, and adoptive placements, provides presumptive standards for what may constitute good cause to depart from the placement preferences, and prohibits courts from considering certain factors as the basis for departure from placement preferences.

·      The rule protects confidentiality of the parties all child custody proceedings, requiring the Bureau of Indian Affairs, states, and tribes to keep information confidential. In response to confidentiality concerns specific to voluntary proceedings, the rule respects a parent’s request for confidentiality by refraining from mandating the state to contact extended family members and allowing the parents to consent to placement of the child or termination of parental rights in a closed session court. The final rule also addresses concerns regarding the sharing of confidential information with tribes by clarifying that tribes are sovereign entities entitled to a government-to-government exchange of information necessary for the government agencies' performance of duties.

Overall, these new regulations in the Indian Child Welfare Act (ICWA) promote early identification of Indian children when they enter the child welfare system, promotes the stability and security of families and tribes, reduces the incidents of trauma triggered by the separation of families, and promotes the placement of child in a familiar environment, which will improve the stability for Native children and their families as a whole.