June 16, 2016

BIA Clarifies Role of State Judges in ICWA Cases

Anthony Arbogast-DeLuca

A new ruling by the Bureau of Indian Affairs (BIA) seeks to ensure that children won’t be taken from their families in violation of the Indian Child Welfare Act.

The clarifications issued by the BIA on June 10th finally grant legally-enforceable legitimacy to traditional Indian child-rearing practices, like leaving children in the care of extended-family members. Previously, this could be a reason for a child to be taken from their family.

This newly issued rule clarifies many complicated aspects of ICWA, most importantly that there is no such thing as the “existing Indian family doctrine.” This idea has been utilized by a small number of state courts to ignore placements with available family members based solely on the rationale that the Indian child in question has not grown up or lived with, or is not intimately familiar with that part of their family. The BIA emphasized that if any family is available for placement, then ICWA requires states to prefer that placement before and above all others once a child welfare proceeding commences.

The rule also clarifies that there must be an initial inquiry into the status of a child entering a child welfare proceeding, since that is the moment when states of ICWA are enforceable. Many comments on the federal website made by a range of organizations highlighted the importance of ICWA adherence early in child welfare proceedings.

Despite good intentions for Indian child welfare, too many unfair custody hearings resulted in massive harm to Indian families and tribes as their children were forcibly taken away. This has also dramatically spiked the rates of Indian children being placed in foster care where they make up two percent of foster care children despite only making up one percent of the entire American child population. However, this trend of unfairly separating Indian families will hopefully reverse with a new ruling set by the BIA.

Since its inception in 1978 to limit when Indian children should be placed into foster care, states have disagreed over the rigidity of requirements imposed by ICWA, and have sporadically and unfairly enforced its key provisions. Due to the myriad approaches taken to enforce ICWA, the BIA assumed its responsibility to increase accountability and uniform enforcement of this federal law.

Yet somehow that degree of articulation has been lost in the language of state court proceedings during many Indian child-custody cases, where we have seen multiple instances of state court judges who believe that they understand Indian children’s best interests better than the parents of those kids, and have gone out of their way to marginalize parental involvement in Indian child custody proceedings.

A small number of states have consistently exercised jurisdiction over Indian child-custody proceedings, but have failed to recognize some of the essential tribal relations of Indian people and Indian culture when determining whether or not a child was in a safe situation—they ‘found’ a child to be neglected or abandoned, when that could not have been further from the fact.

This new rule change, while long overdue, is commendable and expected to reduce the high number of ICWA violations.

Link to new rules: http://www.bia.gov/cs/groups/x...