Tuesday, 7 July 2015

Keeping Track of the Indian Child Welfare Act

It is by now a well-rehearsed comment on the Indian Child Welfare Act that it is poorly implemented and adhered to by states. This poor implementation and state adherence was at least in part responsible for the issuance of new ICWA Guidelines and a proposed binding rule earlier this year. Each of this is a notable event in its own right. The non-binding Guidelines have not been updated since 1979, and there has never been a binding rule in place for ICWA.

The Children’s Bureau, part of the Administration for Children and Families, announced on April 2, 2015, that it intended to issue a supplemental notice of proposed rulemaking that would, for the first time, collect information on ICWA as part of the federal child welfare data. The  intent to publish a supplemental notice  states that:

we have determined that there is authority under the statute (section 479(c) of the Act) to collect ICWA-related data in AFCARS. Specifically, the statute permits broader data collection in order to assess the current state of adoption and foster care programs in general, as well as to develop future national policies concerning those programs.”

This is significant in providing a needed mechanism to provide federal oversight of state performance with respect to ICWA. To date, no further supplemental notice of proposed rule-making has been published—and without that, the details of what would be included on the ICWA data has not been stated. Nevertheless, this information from the Children’s Bureau is a much needed step in the right direction with respect to ensuring compliance with the Indian Child Welfare Act.

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