New ICWA Regulations Promote Tribal Sovereignty and Culture for Native American Children, 0417 COBJ, Vol. 46 No. 4 Pg. 41
| Author | Anna Ulrich, J. |
Juvenile Law
Anna Ulrich, J.
The federal government recently updated its interpretation of the Indian Child Welfare Act through the passage of regulations and revised guidelines. This article reviews the original Act, summarizes recent federal rulemaking, and provides tips for practitioners to avoid pitfalls when handling juvenile law cases involving Native American children.
The federal Indian Child Welfare Act (ICWA or the Act)1 was enacted in 1978 and continues to be significant juvenile law legislation In most cases involving the possible out-of-home placement of a Native American child,2 ICWA requires state courts and state agencies to go above and beyond their normal practices to support and maintain the child’s placement with family, extended family, and tribal members. In the nearly 40 years since it became law, some state court interpretations of ICWA, and the Supreme Court in Adoptive Couple v. Baby Girl (Baby Veronica),3 have appeared to narrow ICWA’s application to fewer Native American children However, the Department of the Interior, Bureau of Indian Affairs (BIA) recently adopted substantive changes to federal regulations implementing ICWA that have strengthened the law, furthering its intent to allow Native America tribes4 a strong voice in the placement of their youngest and most vulnerable tribal members.5 This article discusses ICWA and highlights significant provisions of the new regulations and guidelines.
ICWA in Context
When Europeans first arrived on the North American continent, Native American tribes had been governing themselves and maintaining relationships between neighboring tribes for thousands of years.6 Tribes exercised control over much of the land and natural resources to which the new arrivals wanted access.7 Consistent with a long tradition of negotiating with the native peoples of foreign lands, the Europeans who arrived in North America recognized the tribes as sovereign nations with inherent property rights and bargained with them accordingly, if not always fairly.8
Government Policies
U.S. treaties with Native American tribes are considered contracts among nations.9 The treaties describe a specific set of privileges and conditions for the treaty-making tribes, often made in exchange for the tribes agreeing to cede millions of acres of their homelands to the United States.10 Like other treaties with foreign powers, Indian treaties are “the supreme law of the land” and serve as the basis for the federal Indian trust relationship.11 For this reason, the legal relationship between Native American tribes and the U.S. government was and is considered a government-to-government relationship.12
Despite this government-to-government relationship, the United States initially attempted to relocate indigenous peoples to smaller and less desirable portions of land, known as reservations.13 During the middle of the 19th century, the U.S. government shifted from a policy of removal to reservations to a policy of assimilation, hoping that this would eventually extinguish any remnants of tribalism.14 Toward this end, the BIA created boarding schools for Native American children, with the intent to “[k]ill the Indian in him and save the man.”15 The boarding schools were often thousands of miles away from the children’s homes and reservations,16 and while the quality of the schools varied greatly, they all attempted to eliminate any connection between Indian children and their tribal culture.17 At their worst, boarding school officials undertook or implicitly condoned physical and sexual abuse.18
Boarding schools eventually fell out of favor, and the U.S. and state governments turned to a policy of placement or adoption of Indian children by white families.19 This practice had significant effects; at the time of ICWA’s passage, 25% to 35% of all Native American children had been removed from their homes by state child welfare and private adoption agencies,20 with 85% of them placed outside of their extended families and communities, even when fit and willing relatives were available to serve as legal guardians.21 These policies had significant impact on both the tribes, which lost potentially active members to the dominant culture, and on individual children, who felt cut off and lost from their culture.[22]
ICWA Enactment
Against the backdrop of the civil rights movement in the United States, the pendulum swung away from the policy of assimilation. To stop the unjustified out-of-home placement of Native American children, Congress enacted ICWA in 1978.23 At congressional hearings on the Act, numerous Native American leaders testified about the loss of their tribes’ children and its impact on both the tribes and the children.24
ICWA aims “to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families” through the establishment of minimum federal standards for removing Indian children and placing them in homes that “reflect the unique values of Indian culture.”25 The hope was that ICWA would decrease the number of out-of-home placements of Native American children by deferring jurisdiction to tribes, or at least inviting an Indian child’s tribe to take part in the child’s custody proceedings.26 ICWA would accomplish this through essentially a four-part approach: (1) creating higher standards of proof for the involuntary removal of or termination of parental rights with respect to a Native American child; (2) requiring active efforts by child care agencies to prevent the removal of Native American children, absent emergency circumstances; (3) involving Native American tribes in child custody proceedings through required notice, the transfer of jurisdiction to tribal courts in some cases, and the intervention of the child’s tribe in other cases; and (4) establishing placement preferences, such as with extended family or Native American foster homes, when out-of-home placement or adoption of an Indian child is necessary.27
ICWA Regulations and Guidelines
When it passed, ICWA required the BIA to promulgate regulations regarding its implementation and operation.[28] In 1979, the BIA issued regulations that primarily addressed funding, and also issued best practice guidelines on ICWA’s implications in child welfare cases (BIA guidelines).29 Although the BIA guidelines were not binding on courts, they were considered persuasive authority.30
Despite ICWA’s intent to reduce the number of unnecessary out-of-home placements, Native American children continue to be removed from their homes and communities at a disproportionality higher rate than any other group.31 Moreover, interpretations of ICWA have varied dramatically from state to state, and even from court to court within the same state, making the outcomes in ICWA cases unpredictable.32
Hoping to address this lack of consistency on a national level, the BIA issued revised ICWA guidelines in February 2015.33 The revised guidelines clarified some ICWA provisions that had been interpreted inconsistently, but the new guidelines remained persuasive and not binding. In March 2015, the BIA issued proposed substantive ICWA regulations, similar although not identical to the 2015 revised guidelines.34 On June 14, 2016, the final ICWA regulations were published in the Federal Register.35 The new regulations were effective on December 12, 2016.36 Any out-of-home placement, termination, or adoption of a Native American child after this date must be consistent with both the Act and the ICWA regulations.37
The ICWA regulations clarify previously disputed ICWA provisions and will likely promote a more consistent application in all jurisdictions. The regulations have been endorsed by leading child welfare agencies, the American Bar Association, family court judges, scholars, states, and Native American families who have seen the impact of ICWA noncompliance.[38]
On December 12, 2016, the BIA also issued revised guidelines, effective immediately.39 The new guidelines are based on the recently issued ICWA regulations, and they are an additional resource in understanding the Act and the ICWA regulations.40 The newly revised guidelines remain persuasive, but not binding.41
Colorado’s ICWA Statute
Before issuance of the binding ICWA regulations, in 2002 Colorado enacted its own ICWA implementation statute, CRS § 19-1-126, which mandates compliance with certain ICWA provisions and clarifies ambiguous terminology.[42] For example, the Colorado statute requires that the petitioning party make “continuing inquiries” to determine whether the child involved is Native American and, if so, the child’s tribal affiliation.43 If the failure to provide notice is challenged, Colorado courts will determine by a totality of the circumstances whether the child welfare agency had reasonable grounds to know that the child is Native American.44 Essentially, any legitimate evidence of Native American heritage that is brought to the attention of the department of social services or the court will trigger ICWA’s notice provisions under CRS § 19-1-126.45
Additionally, Colorado’s ICWA statute provides that courts are “encouraged” to consider the following factors when faced with a request for transfer of jurisdiction: (1) whether the tribe has a tribal court; (2) whether either parent objects to the transfer; and (3) whether the proceeding was at an advanced stage when the request for transfer was made, if sufficient notice was provided.46 The burden of proof is on the party opposing transfer of the case to the tribal court,47 which...
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