Proposed binding rule for ICWA data collection

There has been a further  important development regarding the Indian Child Welfare Act (ICWA) -- one which would require states to collect and submit data to the Administration for Families and Children on ICWA related matters.

There is a proposed binding rule that would require-- for the first time since the enactment of ICWA in 1978-- that data be collected by states on the Indian Child Welfare Act. While there is a complex and detailed data collection system on other aspects of foster care and adoption, there has been a conspicious absence on a requirement to collect information about ICWA. The lack of systemic data gathering and inconsistencies in available data were noted for instance in 2005 GAO report on how the Act affected children in the foster care and adoption system. This lack of information  as noted in the GAO report is cited in the proposed rule as detrimental in providing appropriate oversight for Indian children in the foster care system.

The proposed rule is currently open for public comment.

Lakota People's Law Project Video Response to Goldwater Institute Press Conference

The Lakota People's Law Project has made a video response to the press conference held by the Goldwater Institute to announce its class-action law suit against the Indian Child Welfare Act. 

More on Class Action Law Suit Against the Indian Child Welfare Act

More information on the lawsuit which has been filed by the Goldwater Institute, challenging the constitutionality of the Indian Child Welfare Act (ICWA) can be found at the Turtle Talk blog.The Turtle Talk blog comments that: “This is highly funded, highly professional media campaign.” The blog also provides a link to the complaint  filed to initiate the law suit.  

Paragraph 5 of the complaint sets out the aims of the lawsuit: “They seek a declaration by this Court that certain provisions of ICWA, and Guidelines issued by the Bureau of Indian Affairs (BIA), both facially and as applied, violate the United States Constitution. They also seek an injunction from this Court against the application of certain provisions of ICWA and the accompanying BIA Guidelines.”

A statement from  theNational Indian Child Welfare Association 

 remarks that “It is disappointing that during this era of unprecedented support for Native children and youth, there are still special interests intent on mobilizing their considerable resources to dismantle critical protections for children that Indian Country and our allies fought so hard to establish.”

Backlash Against Indian Child Welfare Act Gains

It would be naïve to think that the many gains towards a full and consistent implementation of the Indian Child Welfare Act (ICWA) would go without challenge. ICWA has faced hostility from its inception, and some state courts have been reluctant to fully abide by its binding provisions—thus, the creation of the so-called “existing Indian family exception”—a  judicially created exception that is counter to the plain language of ICWA—that allowed state courts to determine whether to apply the Act or not.

And so it is that a class-action law suit has been announced. The Goldwater Institute is filing a lawsuit planning to challenge ICWA as being a “race-based law that discriminates against American Indian and Alaskan Natives” according to  Native Newsline Online.

In a season of many unprecedented and long-overdue gains for ICWA, this backlash should not have been unexpected. 

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.

Children's Bureau Policy Now Recognizes Customary Adoption for Title IV-E Requirements

A great deal of attention has rightfully been focused so far this year on the changes occurring at the federal level on the implementation and interpretation of the Indian Child Welfare Act. There have been new (non-binding) guidelines issues, and for the first time, a proposed binding rule has been put forward. But these are not the only changes happening at the federal level that are note-worthy. Perhaps hidden because of the higher profile of the ICWA-related changes is a very significant change in the policy of the Children's Bureau.

The National Indian Child Welfare Association explains that

"On February 13, 2015, the Children’s Bureau issued a new policy clarifying that tribal use of customary adoption to modify, as oppose to terminate, parental rights will meet Title IV-E Foster Care and Adoption Assistance requirements. Previously, the Children’s Bureau interpreted Title IV-E requirements to mandate that tribes operating the Title IV-E program must have a tribal code provision that terminates parental rights to be in compliance with Title IV-E. Many of the tribes that operate the Title IV-E program use customary adoptions to honor tribal customs and remove the use of nonIndian practices that resulted in the separation of many AI/AN children from their extended families and tribes"

This is an important recognition, in practice, of American Indian views of adoption, which may differ from that of the typical Western "clean-break" approach that demands the complete legal severance of ties between the child and the parent. The federal policy recognition of the place that customary adoption has in the traditions of some American Indian tribes is a significant step in the acknowledgement and respect for these in the legal arena-- and no doubt will have an impact where it matters the most, in the lives of children and families.

The Children's Bureau policy can on the recognition of customary adoption can be found here at number 3.

Indian Child Welfare Act: the latest news from the US

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.

 Post written by Dr Sarah Sargent.

Updated Guidelines Issued by the Bureau of Indian Affairs on the Indian Child Welfare Act

For those who have been following the effects on the Indian Child Welfare Act ( ICWA) following the 2013 decision by the US Supreme Court in the case of Adoptive Couple v Baby Girl, there is a glimmer of good news. A previous blogpost (here) commenting on this decision noted that it upheld the spirit if not the letter of the Existing Indian Family doctrine, a judicially created doctrine that allowed judges to determine that they would not apply ICWA if the judge had made a determination that the child concerned did not have requisite ( as decided by the judge) cultural ties to their indigenous heritage.

On February 25, 2015, new Guidelines on the implementation of ICWA went into effect. The Guidelines were issued by the Bureau of Indian Affairs. It is the first time since 1979 that Guidelines on ICWA have been updated. There are many praise-worthy elements in the new Guidelines which will be examined in future blog posts. However, given the commentary in the previous blog post about the effect of the US Supreme Court decision on the Existing Indian Family Doctrine, it is important to note that the EIF doctrine is specifically addressed in these Guidelines. The Guidelines specifically state that “Section A ( of the Guidelines) is intended to make clear that there is no existing Indian family (EIF) exception to application of ICWA… The Department agrees with the States that have concluded that there is no existing Indian family exception to the application of ICWA.” This is certainly good news, however long overdue.

Post written by Sarah Sargent.