May 01, 2015

Indian Child Welfare

Proposed regulations to implement the Indian Child Welfare Act (ICWA) take an important step toward achieving full implementation of the act by aiming at “clarity and constancy in practice,” the ABA said in comments submitted May 19 to the Bureau of Indian Affairs. The ABA, through its Center on Children and the Law, has provided training and assistance for many years to improve compliance with child welfare laws, including ICWA. That work has included examining how ICWA can help reduce unnecessary foster care placement, and the center’s staff and consultants have studied what has and has not worked in implementing the act. The ABA comments highlight several provisions in the proposed regulations that are particularly important, including: improving data collection; requiring the agency and courts to inquire about ICWA applicability in all cases, not just if a child looks Native American; rejecting the Existing Family Exception holding that ICWA would not apply to a family not living as part of an “Indian family”; and requiring immediate efforts to achieve family preservation and permanency. The comments also suggest that the bureau further clarify the definition of “child custody proceeding” and the scope of “emergency removal.” The ABA supports full implementation of ICWA and the training and resources necessary to enforce compliance with the act. In addition the association supports efforts to reduce the disproportionate number of American Indian and Alaska Native children who are removed from their homes.

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