Final rule for Indian Child Welfare Act takes effect December 12

Wednesday, June 15, 2016

A new rule that seeks to strengthen compliance with the Indian Child Welfare Act was officially published in the Federal Register on Tuesday.

The final rule takes effect December 12, 2016, according to the document. That's about a month before the term of President Barack Obama comes to an end.

"This is going to provide more certainty to state courts and state child welfare agencies regarding how to comply with ICWA," Larry Roberts, the leader of the Bureau of Indian Affairs, said on a conference call with reporters last week.

Indian Country has welcomed the regulation. Tribes and tribal organizations say it will help prevent the breakup of Indian families, a primary goal of ICWA when it was enacted by Congress in 1978.

“Our Navajo children are our most precious possession," President Russell Begaye of the Navajo Nation said in a press release on Tuesday. "As one of the Navajo Nation's top priorities, we are committed to protecting and ensuring our children are in safe, loving homes."

The tribe employs 10 full full-time social workers who are currently managing about 740 active ICWA cases affecting more than 1,500 children in 30 states. About 300 new notices and inquiries are sent to the Navajo Division of Social Services every year, with a majority coming from California, the state with the largest population Native Americans, according to the U.S. Census Bureau.

"For Indian Country, including the Navajo Nation, this is fundamentally important and historic announcement that exemplifies support for this 38-year-old law," said Terrelene Massey, the executive director of the division. "These final rules secure mechanisms for our children to know and be aware of their Navajo culture, their kin and their history.”

Chief Bill John Baker of the Cherokee Nation also welcomed the rule. Due to its sizable membership, the tribe deals with a large number of ICWA cases and participated in a high-profile dispute that went all the way to the U.S. Supreme Court.

“The new ICWA regulations will ensure children remain with their families, tribes and communities. Among the most notable provisions is that the regulations will ensure identification and tribal notification when Indian children are involved in state court custody proceedings," Baker said in a statement. "Additionally, the regulations recognize that Indian children's best interests are served when ICWA, which is the gold standard in child welfare, is strictly enforced."

According to the Native American Rights Fund, the rule resolves 38 years of differing interpretations of ICWA among state governments. The non-proift's executive director, John EchoHawk, who just received a national award for his efforts to promote problem solving and dispute resolution, said it will promote security and stability for tribal families.

"The prior approach to ICWA’s implementation, having fifty separate states read the law fifty different ways, was inconsistent with Congress’s intent to create uniform standards for Indian children and families involved in child custody proceedings," EchoHawk said in a press release. "These regulations will provide clear, consistent rules for child placement decisions that will result in better, more reliable outcomes for Native children.”

During last week's call, Roberts said many states are working well with ICWA. Some have passed their own laws in an attempt to ensure that Indian children aren't being left behind.

But not every state is the same. A judge in South Dakota was sanctioned in federal court for keeping ICWA information from the Oglala Sioux Tribe and the Rosebud Sioux Tribe and Indian parents and guardians.

"The new regulations will keep families together," President Brian Cladoosby of the National Congress of American Indians said in a press release. "Clear and consistent rules for child placement also will result in faster and more reliable placement decisions for all affected families, creating better outcomes for our children."

Relevant Documents:
Final Rule: Indian Child Welfare Act (ICWA) Proceedings | Final Rule: Indian Child Welfare Act (ICWA) Frequently Asked Questions | Dear Tribal Leader Letter | Dear State Governor Letter

Federal Register Notices for Indian Child Welfare Act Rule:
Indian Child Welfare Act Proceedings (June 14, 2016)
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)