Law | Opinion

John Guenther: Indian Child Welfare Act remains under attack

Friday, May 29, 2015

Indian children in South Dakota. Photo from Lakota People's Law Project / Facebook

John Guenther suggests ways to protect the Indian Child Welfare Act and keep Indian children in their communities:

The Indian Child Welfare Act was passed in 1978, preceded by studies like the 1976 study by the Association of American Indian Affairs, which found that 25 to 35 percent of all Indian children were being placed in out-of-home care. Eighty-five percent of those children were being placed in non-Indian homes or institutions. In a response to the overwhelming evidence from Indian communities that the loss of their children meant the destruction of Indian culture, Congress passed the Indian Child Welfare Act of 1978. It was passed due to the disproportionate amount of Indian children placed in out of home placements, as well as finalizing adoptions away from the child’s tribe and family. ICWA has served thousands of Indian children, and has helped strengthen their families.
As always ICWA is under attack and people who want placement of Indian children are lobbying to overturn the law. Recently, the BIA promulgated new guidelines and held public hearings regarding the proposed regulations. The BIA guidelines have not been updated since 1994 and the proposed regulations are the first substantive regulations proposed since enactment of ICWA. While the guidelines provide guidance on how to implement the law, regulations proposed are the first since the enactment of ICWA. While the guidelines provide guidance on how to implement the law, regulations carry a greater force of law, which will strengthen enforcement of ICWA. The guidelines are already being used in court proceedings, and are being challenged in some state and county courts. States are asking for independent assessments on the application of good cause to oppose transfer of jurisdiction to tribes. The same critics of ICWA that assert that ICWA far exceeds its original purpose; do not understand that ICWA is the only federal law that requires a fair process that considers the unique needs of Indian families and children, and requires consideration by state and private child welfare agencies and courts.
The issue of ICWA is complex both legally and on a personal level. The same critics that assert that ICWA’s current guidelines and regulations exceed its intent are not being truthful to themselves and others. As evidence, over-representation of Indian children exist in almost every state where a federally-recognized tribe exists, especially states like Alaska.

Get the Story:
John Guenther: How to Protect Native Children—and ICWA (Indian Country Today 5/29)

Federal Register Notices:
Regulations for State Courts and Agencies in Indian Child Custody Proceedings (March 30, 2015)
Guidelines for State Courts and Agencies in Indian Child Custody Proceedings (February 25, 2015)