Earlier this week, the Bureau of Indian Affairs (BIA) published final regulations intended to improve uniform application and compliance with the Indian Child Welfare Act of 1978 (ICWA).  Congress passed ICWA in response to the alarmingly high percentage of Indian children being removed, often unwarranted, from their families.  The Act is designed to protect the best interests of Indian children and promote the stability and security of Indian families.  ICWA’s implementation, though, was left to the individual states, and in the decades since its passage, state courts have interpreted and implemented the law in differing fashions.  “These regulations will finally ensure uniform application of the federal law meant to keep Indian children and their families together,” said John Echohawk, Executive Director of the Native American Rights Fund.  “The prior approach to ICWA’s implementation, having fifty separate states read the law fifty different ways, was inconsistent with Congress’s intent to create uniform standards for Indian children and families involved in child custody proceedings.  These regulations will provide clear, consistent rules for child placement decisions that will result in better, more reliable outcomes for Native children.”

Highlights of the new regulations include:

• Clarification of the steps involved in conducting a thorough inquiry—at the beginning of child custody proceedings—into whether the child is an “Indian child” subject to the Act.
• Clarification of the distinction between the requirements for emergency proceedings and other child custody proceedings involving Indian children.  The new regulations also include provisions helping to ensure that emergency removal and placements are as short as possible, and that, when necessary, proceedings are promptly initiated and fully comply with ICWA.
• Uniform requirements for prompt notice to parents and Tribes in involuntary proceedings to facilitate compliance with the Act.
• Clarification of when and what placement preferences apply in foster care, preadoptive, and adoptive placements.  The new regulations also provide presumptive standards for what may constitute good cause to depart from the placement preferences, and the regulations also prohibit courts from considering certain factors as the basis for departure from placement preferences.
• Clarification of certain aspects of ICWA’s applicability to voluntary proceedings, including addressing the need to determine whether a child is an “Indian child” in voluntary proceedings and specifying the requirements for obtaining consent.
• Explanation of the rights of adult adoptees to information.  The new regulations also set out what records states and the federal government must maintain.

NARF is a partner in the ICWA Defense Project with the National Indian Child Welfare Association, the National Congress of American Indians (NCAI), and the ICWA Appellate Project at Michigan State University College of Law.  The ICWA Defense Project’s statement in support of the new regulations is available here.

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