There is a great deal that has been happening with respect
to the Indian Child Welfare Act and its ability to be an effective tool to
safeguard American Indian families and tribes. Recently new Bureau of Indian
Affairs guidelines were announced. This was the first time since 1979 that new guidelines had been
put forward. The position of the guidelines with respect to ICWA is unclear-
whether these are only advisory or whether they in fact should be given weight
as binding.
The Bureau of Indian Affairs has stepped forward with a
plan, however, to fill that breach, through announcing a plan to issue rules
interpreting the Indian Child Welfare Act that would be binding on courts.There are several public meetings and tribal
consultation sessions scheduled to discuss the proposed rule. Among other
things, the proposed rule continues the message that there is no “existing
Indian family” exception to the application of ICWA. In other words, judges
cannot determine whether or not to apply ICWA on the basis of their own
perceived strength of cultural ties of the child and family to tribal culture. The
proposed rule states that: “ There is no exception to the application of ICWA
based on the so-called “existing Indian family doctrine.” It further provides a
“non-exhaustive list” of factors that courts cannot consider in deciding
whether or not ICWA is applicable.
