Monday, 13 June 2016

Binding Regulations Issued for the Indian Child Welfare Act (ICWA)

It has been a long time coming—nearly forty years after the enactment of the Indian Child Welfare Act (ICWA)—but at long last there will be binding regulations that must be followed.  Signed on June 6, with entry into effect forecast for December 2016, this is a big step forward to ensure the proper application and adherence to the Indian Child Welfare Act.  This link is not to the official rule ( which will be published in the Federal Register) but rather is a copy of the document which was signed and “submitted …for publication in the Federal Register.” 

It did not take long after ICWA’s enactment for state courts to begin to find ways to evade its application—most notably with the so called “ existing Indian family exception”—which enabled a state court judge to apply his or her own standard of how connected a child and family must be to a tribe and to American Indian culture to apply the law. This is despite the fact that the plain language of ICWA entertains nothing of the sort as a threshold requirement for the application of the Act.

is hoped that these new binding regulations will strengthen the application of the Act, and put to rest state court efforts to devise doctrines to evade ICWA’s requirements.

A variety of commentary on the new binding regulations can be found here. 

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