Proposed Binding Rule on the Indian Child Welfare Act

The comment period has now passed for the Indian Child Welfare Act (ICWA) regulations that were proposed on March 20, 2015 through their publication in the Federal Register. These rules, if adopted by the Bureau of Indian Affairs become binding on states. In other words, states have no choice but to follow them. These proposed rules come on the heels of up-dated ICWA guidelines—which are not binding upon states in the same way that rules are—published in the Federal Register on February 25, 2015.

Public meetings and tribal consultation sessions about the proposed rule have been held. Comments on the proposed rules were to have been submitted by May 19, 2015.

Having binding rules is an important step forward in ensuring that states follow ICWA, and that the rights of American Indian children, their families, communities and tribes are recognized and respected. This puts a significant barrier in the way of courts trying to evade the application of ICWA by creating doctrines such as the “Existing Indian Family” exception (EIFE) to ICWA. The guidelines already make clear that the EIFE is not compatible with ICWA and should not be used. The proposed rule does the same—with the clear advantage of doing so from – if the rule is put into force—a position that is binding upon states. Commentary on the proposed rule explains:

 “… the proposed rule clarifies ICWA applicability and codifies that there is no ‘Existing Indian Family Exception (EIF)’ to ICWA. Since first identification of the EIF in 1982, the majority of State appellate courts that have considered the EIF have rejected it as contrary to the plain language of ICWA. Some State legislatures have also explicitly rejected the EIF within their State ICWA statutes. When Congress enacted ICWA, it intended that an ‘‘Indian child’’ was the threshold for application of ICWA. The Department agrees with the States that have concluded that there is no existing Indian family exception to application of ICWA.”

 Both the guidelines and the proposed rules represent important steps towards regaining integrity in the application of ICWA that was lost with the 5-4 decision by the US Supreme Court in Adoptive Couple v Baby Girl in 2013.

Post written by 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.

Two Tales of the Indian Child Welfare ACt

Two Tales of the Indian Child Welfare Act

There are two stories in the media currently about the Indian Child Welfare Act (ICWA).  One is about a case pending for a decision as to whether it will be heard by the United States Supreme Court. 

The other seems to see relatively less light of day—that of the on-going call to address the high rates of removal of Lakota children in South Dakota. The case pending in front of US Supreme Court  calls for the recognition of the pernicious Existing Indian Family Doctrine in relation to the adoption of a young Cherokee child. (link to brief filed in the US Supreme Court on behalf of the child, birth father and the Cherokee Nation)

 The Existing Indian Family Doctrine allows judges—in their discretion and applying their own standards- to avoid the application of ICWA with a finding that a child is not “Indian enough” to apply ICWA, even though the child meets the application threshold of being an “Indian child” as defined in the Act.   

ICWA is on the one hand  thus presented as the villain—coldheartedly stripping children from the arms of loving parents. The great irony in this presentation is that ICWA was created to prevent just that scenario (albeit with one difference—the parents ICWA is concerned about are those of the child and not of prospective adoptive parents)—the removal of children from their families and communities. The wholesale removal of indigenous children done in the interests of assimilation was to have stopped with the passage of ICWA in 1978. The testimony  in support of the Act makes for harrowing reading.

But even more harrowing is the reality that the removals of children has not stopped. NPR called attention to this with a series aired well over a year ago. There are calls for Congressional inquiry into the practices that result in the removal of so many indigenous children.

  

But instead of outcries against this there instead seems to be a  determined silence about those indigenous parents in anguish and  the injustice of those actions which remove children from their parents and community.

ICWA is an important and forward thinking act. It is as necessary today as it was in 1978. The problems with the Act arise not because of the Act itself, or from any need to abolish it or give any credence to the judicial embarrassment that parades as the Existing Indian Family Doctrine. The problems arise in each instance—that in the pending US Supreme Court case and in South Dakota—when the Act is not adhered to. The problem is not the Act, but in the failure to comply, and perhaps more importantly, with those attitudes that persist in a willful ignorance about the Act which try to legitimize efforts to evade it.