BIA Issues New ICWA Guidelines; Child Welfare Lawyers Debate Proposed Regulations – Part 1 of 2

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On February 25, 2015 the BIA issued new ICWA guidelines to assist state courts and agencies in implementing the Indian Child Welfare Act. This is the first time the guidelines have been revised since the initial publication in 1979. Subsequently, on March 18, 2015, the BIA announced a proposed rule to govern the implementation of ICWA, based largely on the guidelines. There is currently an open comment period on the proposed rule, which closes on May 19, 2015.   

This is the first blog post in a two-part “point-counterpoint” series on the new ICWA Guidelines and proposed regulations. The first blog post outlines concerns over adoption of the proposed rule. The second blog post, which will be published next week, outlines support for the proposed rule. We hope that you will take this opportunity to read both points of view, read the proposed regulations yourself, and in doing so be able to make an informed decision on your position. And then if you feel so inclined, make your voice heard by submitting your comments.

  • Mark Fiddler
  • Jay McCarthy

Mark Fiddler / Jay McCarthy

On March 18, 2015, Assistant Secretary of Indian Affairs Kevin K. Washburn announced that the Bureau of Indian Affairs (BIA) published a proposed rule to govern the implementation of the Indian Child Welfare Act of 1978 (ICWA) by state courts and child welfare agencies. The proposed rule also includes dramatic changes to current regulations that govern state court ICWA proceedings. Comments are due by May 19. The proposed regulations and instructions on submitting comments may be found here.

The American Academy of Adoption Attorneys has long advocated the notion that the best interest of the child are paramount in child custody proceedings. In Indian Child Welfare Act (ICWA) proceedings that principle is no less true, although the courts must apply ICWA as well. This is why the Academy is greatly alarmed at the proposed regulations published by the Bureau of Indian Affairs, as the proposed rules radically undermine the primacy of the child’s best interests. There are too many shocking examples to mention in this blog post, but we will highlight just a few.

Under the proposed rules, “Imminent physical damage or harm means present or impending risk of serious bodily injury or death.” This is a shocking definition of imminent damage or harm used in emergency removal proceedings, for it means lesser state and federal crimes against a child — such as domestic assault, sexual abuse or assault, or injury-causing misdemeanor and gross misdemeanor assault — are not cause for state authorities to remove children in an emergency. Indian children should have equal protection of the laws — they plainly do not under this definition.

The BIA also seeks to radically restrict the evidence that may be introduced in ICWA cases by barring evidence of bonding and attachment. Such evidence which has long been admissible under case law to show “extraordinary emotional needs,” under former BIA Guidelines in order to justify “good cause” to deviate from ICWA’s placement preferences. Not so anymore, as the proposed rule states: “…extraordinary physical or emotional needs of the child does not include ordinary bonding or attachment that may have occurred as a result of a placement.” This is a mandate for placement disruption for Indian children. With a chronic shortage of Indian foster homes, abused and neglected Indian children must be placed in non-Indian homes for their protection, yet the proposed rule means that the fact of child’s attachment to her foster parents is inadmissible, meaning the child may be moved–often years later–when an Indian home is found.

The BIA also proposes that in removing children, “the court may not issue an order effecting a foster care placement of an Indian child unless clear and convincing evidence is presented, including the testimony of one or more qualified expert witnesses, demonstrating that the child’s continued custody with the child’s parents or Indian custodian is likely to result in serious physical damage or harm to the child.” This standard of harm conflicts with the standard of harm in Section 1912 (e). That section provides that a foster care placement can only be ordered upon a finding that “the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.” This rule rewrite of the statute means that that Indian parents and custodians have a right to inflict emotional harm on their children.

These are just a few examples. We think NACC attorneys should be alarmed and take prompt action. For the Academy’s full response to the BIA proposed federal regulations regarding the Indian Child Welfare Act please click here.


Note: The views and opinions expressed in this blog post are those of the author, and do not necessarily reflect the views of the NACC.

Mark Fiddler / Jay McCarthy

Mark Fiddler is a registered member of the Turtle Mountain Band of Chippewa Indians, and is a private practice attorney in Minnesota who specializes in the areas of adoption, foster care, third party custody, and the Indian Child Welfare Act (ICWA). He was awarded the Minnesota Lawyer Attorneys of the Year for 2013. He is a member of the American Academy of Adoption Attorneys, co-chair of its ICWA Committee, and the founding director of the Indian Child Welfare Law Center. Mark has litigated Indian Child Welfare Act cases in appellate courts in several states and in the United States Supreme Court, including the landmark case, Adoptive Couple v. Baby Girl.

Philip (Jay) McCarthy is in private practice in the law firm of McCarthyWeston in Flagstaff, Arizona. He specializes in the areas of adoption, foster care, and grandparent representation. Mr. McCarthy also practices in Navajo, White Mountain Apache, Hopi, and Yavapai Apache tribal courts, and serves as co-counsel throughout the United States in cases involving the Indian Child Welfare Act (ICWA). He is a member of the American Academy of Adoption Attorneys and is co-chair of its ICWA Committee. He is also cofounder of the Alaska CASA program, and has been a member of the NACC for 30+ years.

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