Why Try to Change Me Now?: the Basis for the 2016 Indian Child Welfare Act

• Publication year: 2021
• Citation: Vol. 96

96 Nebraska L. Rev. 1007. Why Try to Change Me Now?: The Basis for the 2016 Indian Child Welfare Act

Why Try to Change Me Now?: The Basis for the 2016 Indian Child Welfare Act Regulations(fn*)

Kasey D. Ogle

TABLE OF CONTENTS

I. Introduction .......................................... 1007

II. Background ........................................... 1009
A. Passage and Intent of the Indian Child Welfare Act ............................................... 1009
B. 1979 Guidelines and Their Effects ................. 1011
1. The Bureau of Indian Affairs's Position Against Binding Regulations ........................... 1011
2. The Indian Child Welfare Act's Inconsistent Application Throughout the States ............. 1012
C. The Bureau of Indian Affairs's Change in Position and 2016 Promulgated Regulations ................ 1013

III. Analysis .............................................. 1015
A. Tenth Amendment and Federalism Concerns ....... 1015
B. Applicability of Chevron Defense ................... 1018
C. Mississippi Bank of Choctaw Indians v. Holyfield ... 1020
D. Timeliness ........................................ 1022
1. Brock and Barnhart ........................... 1023
2. Legislative History ............................ 1025
3. Public Policy .................................. 1026
E. Other Consequences of Delayed Action ............. 1029

IV. Conclusion ............................................ 1031

I. INTRODUCTION

I'll start with my oldest boy, John. I had a babysitter watching him and I went to get him and they wouldn't give him back to me. So, I went to my social

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worker and I asked him if he would come with me up there. . . . That was in December 1970, and I asked him . . . to meet me at the store. He didn't come. . . . I don't know if they had a court hearing or something. I didn't get any papers or nothing. . . . I didn't know anything about it, and when I did go, they had to appoint me a lawyer. . . . I went to see him and he didn't try to help me or anything. . . . He didn't do anything because I didn't know anything that happened until July of 1971. . . . They had John all that time in a foster home. . . . I didn't know where he was. I kept asking, but they wouldn't tell me where he was or anything. . . . The man said that I wasn't a very good mother and everything, and that my children were better off being in a white home where they were adopted out, or in this home, wherever they were. They could buy all this stuff that I couldn't give them, and give them all the love that I couldn't give them.(fn1)

The tragedy of the systematic atrocities committed against Native Americans is a long, tragic, and bloody tale. Dating back to colonial times, the United States has long predicated its sovereignty on the subjugation of Native Americans.(fn2) After the conclusion of the Indian Wars in 1886, the pre-Columbian Indian population had been reduced by ninety-eight percent.(fn3) By 1887, Native lands had been reduced to 138 million acres, which were further diminished to a mere forty-eight million acres by 1934.(fn4) And in the 1970s, twenty-five to thirty-five percent of Indian children were unwarrantedly removed from their families and placed in the welfare system.(fn5) The statement above by Cheryl DeCoteau is only one of many similar stories told before Congress when it considered the Indian-child-welfare crisis.(fn6) Though the Indian Child Welfare Act (ICWA or the Act) sought to address the systemic issues that created such high rates of Indian child displacement, because of the inaction of the Bureau of Indian Affairs (BIA), these problems remain.(fn7) Moreover, as a result of the BIA's delayed decision to promulgate binding regulations, its authority to do so may have lapsed, allowing the nationwide displacement of Indian children to continue.(fn8)

Section II.A of this Comment describes the intent and the passage of ICWA. Section II.B explains the BIA's decision to publish nonbinding guidelines in 1979 and the effect of that decision, which resulted in the inconsistent application of ICWA throughout the states. Section

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II.C details the BIA's change from its 1979 position to its decision to issue binding regulations in June 2016. Part III of this Comment explores the challenges to the BIA's authority to promulgate regulations. Section III.A considers the constitutionality of the 2016 regulations and of ICWA itself. Section III.B examines whether the BIA should be given Chevron deference in interpreting ICWA. Section III.C illustrates how the Supreme Court interpretation of ICWA in Mississippi Band of Choctaw Indians v. Holyfield is supportive of BIA authority. Section III.D outlines the considerable hurdle of the untimeliness of the BIA's regulations. Finally, Section III.E contemplates other consequences of late action by the BIA.

II. BACKGROUND

A. Passage and Intent of the Indian Child Welfare Act

The Indian Child Welfare Act was passed by Congress in 1978 to "protect the best interests of Indian children and to promote the stability and security of Indian tribes and families."(fn9) The Act was passed as a response to systemic failures that resulted in Indian children being displaced from their families and communities at "significantly higher rates than non-Indian children."(fn10) As many as one-third of Indian children were removed from their homes and placed in the care of non-Indians prior to ICWA's passage.(fn11) Finding that "[t]he Indian child welfare crisis will continue until the standards for defining mistreatment are revised,"(fn12) Congress enacted ICWA to establish "minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture."(fn13)

The Congressional investigation lasted four years and yielded over two thousand pages of legislative testimony at hearings before the Senate and the House and their various committees.(fn14) Congress concluded that "the Indian child welfare crisis is of massive proportions and that Indian families face vastly greater risks of involuntary separation than are typical of our society as a whole."(fn15) Four main factors

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contributed to such a high rate of Indian-child removal: "a lack of culturally competent State child welfare standards for assessing the fitness of Indian families; systematic due-process violations against both Indian children and their parents during child-custody procedures; economic incentives favoring removal of Indian children from their families and communities; and social conditions in Indian country."(fn16) Moreover, Congress found that state actions were the cause of many of the problems surrounding the high rate of Indian-child removal.(fn17) It was the "failure of State officials, agencies, and procedures to take into account the special problems and circumstances of Indian families and the legitimate interest of the Indian tribe in preserving and protecting the Indian family as the wellspring of its own future" that ultimately created the Indian-child-welfare crisis that led to ICWA.(fn18)

To address the problem, the House Report noted:

While the committee does not feel that it is necessary or desirable to oust the States of their traditional jurisdiction over Indian children falling within their geographic limits, it does feel the need to establish minimum Federal standards and procedural safeguards in State Indian child custody proceedings designed to protect the rights of the child as an Indian, the Indian family and the Indian tribe.(fn19)

The resulting legislation was an attempt to push back against the Indian-child-welfare crisis by placing procedural and substantive requirements on state courts and parties to Indian-child-welfare cases before the removal of an Indian child or the termination of the parental rights of an Indian child.(fn20) Instead of continuing to rely on traditional state determinations of Indian-child-welfare cases, "ICWA emphasizes the tribe's competency to make adoption decisions with respect to tribal children."(fn21) By placing these requirements on state courts, Congress intended to curtail the unjust application of state authority to systematically remove Indian children from their families and communities, which had been compared to another form of geno-

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cide committed against Native tribes.(fn22) It was this very genocide ICWA was designed to prevent.

B. 1979 Guidelines and Their Effects

1. The Bureau of Indian Affairs's Position Against Binding Regulations

As part of ICWA, Congress included a mandate to the Secretary of the Interior (the Secretary): "Within one hundred and eighty days after the enactment of this Act, the Secretary shall promulgate such rules and regulations as may be necessary to carry out the provisions of this Act."(fn23) This provision was read by the Bureau of Indian Affairs as only granting it authority to promulgate regulations where ICWA "expressly delegate[s] to the Secretary of the Interior responsibility for interpreting statutory language."(fn24) As a result, the BIA only promulgated regulations in these specific areas and left other matters of statutory interpretation up to the states and their courts, releasing only nonbinding guidelines to aid in their interpretation.(fn25)

According to the BIA, Congress had not intended the grant of rulemaking authority to allow the BIA to promulgate regulations where the Secretary was not clearly implicated.(fn26) Instead, it took the position that state and tribal courts were "fully capable of carrying out the responsibilities imposed on them by Congress without being under the direct supervision of this Department."(fn27) Moreover, the BIA believed that exerting any more regulatory authority with respect to ICWA than it had would...