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

Native American Girl

Photo by Joe is licensed under CC BY-NC-ND 2.0


On March 18, 2015, 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 public and private child welfare entities. The proposed rule provides needed clarity on how ICWA governs state court proceedings involving Native children. Comments are due by May 19. The proposed regulations and instructions on submitting comments may be found here.

This is the second blog post in a two-part “point-counterpoint” series on the new ICWA Guidelines and proposed regulations. The first blog post outlined concerns over adoption of the proposed rule. This post 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.

Craig J. Dorsay

Craig J. Dorsay

I agree with the American Academy of Adoption Attorneys (AAAA) that the proposed regulations, like many proposed regulations, need some changes. It is precisely for this reason that regulations go through a notice and comment period. It is our job to use the 60 days to improve proposed regulations through feedback that ensures that the final rule is crafted in line with the law’ s intent and in a manner that makes practical sense.

We agree that the definition of “imminent physical damage or harm” should be changed to ensure there is no uncertainty regarding the protection of children from sexual abuse or assault, and that the clerical error made in the language regarding the standards of removal should be corrected to mirror the statute’s language. These concerns, however, do not diminish the need for the clarity and consistency that regulations can provide. Statistics show that, in spite of ICWA, Native children are three times more likely to be removed from their homes than non-Native children–a rate higher than any other population. Recent cases like Oglala Sioux Tribe v. Van Hunnik illustrate how some courts continue to disregard the law and the constitutional rights of Native children and families. This unequal treatment is unacceptable.

The proposed regulations take into account changes in child welfare practice since ICWA’s passage in 1978; provide clear direction so that Native children in every jurisdiction receive the same treatment under the law; and reduce willful non-compliance. For example, the proposed regulations:

  • Provide a clear definition of when and how ICWA’s requirement to provide “active efforts” to preserve families applies
  • Define the procedures for emergency removal to protect children’s due process rights
  • Clarify how to appeal the wrongful removal of a child
  • Provide a process for adult adoptees denied access to their tribal heritage to reconnect with their tribe while still protecting biological parents’ rights to anonymity

The proposed regulations do, as AAAA notes, restrict the “good cause” provision of the placement preferences section of ICWA. They state, that although extraordinary physical or emotional needs of the child can be good cause to place outside the preferences, extraordinary physical or emotional needs do not include “ordinary bonding or attachment that may have occurred as a result of a placement that does not comply with ICWA.”

I cannot stress how important this provision is. As an attorney who has practiced in family courts since ICWA’s inception, this provision is the correct interpretation of ICWA. It is good social work and psychological practice. I have seen first-hand Native children placed outside of ICWA’s placement preferences when Native homes were ready and waiting, just so later “bonding and attachment” arguments could be used to circumvent the law. I have also seen children removed from Native parents without any attention paid to the bonds and attachments they have with their parents and extended family members.

This provision balances the tension that exists in all child custody cases between recognizing bonding and attachment and enforcing the rule of law. It also recognizes the science behind bonding and attachment related to Native family structure and extended family relationships. The proposed section acts as a preventive measure to encourage compliance with ICWA while promoting a Native child’s best interests. If ICWA is properly followed from the beginning, this issue will rarely arise.

I think NACC attorneys should take prompt action to protect Native children too. It is imperative that you as experts file comments that support and clarify the proposed regulations. Without the clarity that the regulations bring, the rights of Native children will continue to be ignored, violated, and inconsistently applied.  Native children deserve better than the status quo.

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.

Craig J. Dorsay

Craig J. Dorsay is a partner in the firm of Dorsay & Easton, LLP. He has specialized in the practice of Indian and family law for over 30 years. He is a nationally recognized expert on the Indian Child Welfare Act and teaches and writes extensively on ICWA and other Indian law issues. He is also a consultant for the American Bar Association Resource Center for Children and the Law.

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