Today, the Bureau of Indian Affairs (BIA) released updated Indian Child Welfare Act (ICWA) Guidelines, effective immediately. This is the second update to the guidelines since their original release in 1979 and a revision last year. The guidelines were created to assist with ICWA implementation and this latest version is also intended to serve as a companion for the ICWA Regulations, which were released on June 8, 2016 and went into effect today, December 12, 2016. Since the release of the original guidelines it has become increasingly clear that additional clarification has been needed to assist with the interpretation of key provisions and to ensure consistent compliance. Congress passed ICWA in 1978 to address the widespread practice of State entities removing American Indian children from their homes without an understanding of traditional American Indian child-rearing practices.
Throughout the 1960s and 1970s, American Indian/Alaskan Native children were six times more likely to be placed in foster care than other children. See, H.R. Rep. No. 95-1386 (1978), at 9. Unfortunately, according to recent research compiled by the NCJCJ, the percentage of American Indian and Alaska Native children in out of home placement has remained highly disproportionate. American Indian and Alaska Native children are the only group in the United States whose disproportionality rates are progressively worsening instead of improving. According to 2013 data, across the United States, American Indian and Alaska Native children are overrepresented in foster care at a rate of 2.5 times their rate in the general population.
In 2013, the National Council of Juvenile and Family Court Judges (NCJFCJ) Board of Directors passed a resolution in support of the full implementation of ICWA and encouraged all state courts to make this a priority. The resolution recognized and renewed a commitment to support the provisions within ICWA that require inquiry, notice, active efforts, high standards of proof based on the testimony of a qualified expert witness before removal or termination, placement preferences, and provisions for exclusive tribal jurisdiction and intervention. Many provisions within the revised guidelines are in line with both this 2013 ICWA Resolution and best practices as recommended in NCJFCJ trainings and resource materials.
In addition, in 2011, the NCJFCJ Board of Directors passed a resolution in support of tribal courts. In the resolution the Board stated “the NCJFCJ, in serving children and families, recognizes that tribal and state courts are equal and parallel justice systems” and later stated that the Board of Trustees “is, and shall be, committed to engaging the tribal courts as full partner… and in meeting the needs of all children and families served by the state and tribal courts, complying with the letter and the spirit of all laws effecting Native children and families including, but not limited to, the Indian Child Welfare Act…”
Therefore, in keeping with the NCJFCJ’s policies to prioritize the full implementation of ICWA and support tribal courts by complying with the letter and spirit of all laws affecting Native children and families, and also with the intention of reducing the highly disproportionate rates of American Indian and Alaska Native children in out of home placement, the NCJFCJ encourages all state court judges to read and apply the additional guidance provided by the revised BIA ICWA Guidelines. The revisions clear up much of the ambiguity in the previous guidelines and should provide additional certainty for judges while still allowing for sufficient discretion when making tough decisions in these cases.
The NCJFCJ staff are working to create new materials to assist you with meeting these requirements. For immediate assistance, feel free to email contactus@ncjfcj.org.