The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.
The Bureau of Indian Affairs proposed new Regulations for State Courts and Agencies in Indian Custody Proceedings1 on March 20, 2015. In response to a request for public comments, the ABA Center on Children and the Law prepared comments on several provisions of the regulations. Those comments are excerpted here.
The proposed Indian Child Welfare Act Regulations take an important step toward achieving full implementation of the Act by aiming for clarity and consistency in practice.
The data collection requirements outlined in the proposed Regulations2 are needed to determine compliance with the Act. Currently, there are only isolated efforts to ascertain the quality of practice around the Act. This does not allow efficient targeting of state, tribal, or federal resources in efforts to improve systems.
Definition of “Child Custody Proceeding”
Section 23.2 includes a definition of child custody proceeding with the words “any proceeding or action” that we believe is not fully clear. We recommend adding “court hearing” after the word “any.” After the word “action” we would encourage adding “by an agency or court” to make it immediately clear that “proceeding” applies to both. In addition, in the description of “Foster care placement” that follows, we would add, after the words, “any action” the words “by agency or the court” to again be clear that both agency ex parte foster care placements and court-ordered foster care placements are included as “proceedings.”
Section 23.107 of the proposed regulations indicates that the agency and courts should inquire about ICWA applicability in all cases. This targets a serious problem of inconsistent practice. There is a tendency for certain state agencies and courts that are geographically proximate to tribal lands to make greater efforts to comply with the ICWA despite the fact that 78 percent of Native Americans do not live on tribal lands.3
There are also anecdotal reports that some agencies and courts only ask about ICWA application if a child “looks like a Native American.” This is an inappropriate and ineffective standard; nearly half of Native Americans and Alaska Natives in the U.S. report multiple races.4
Rejection of the Existing Indian Family Exception
Section 23.103 properly rejects the Existing Indian Family Exception. This exception, which held that ICWA did not apply to a family that was not living as part of an “Indian family unit,” is problematic in many ways. For one, it is wholly contrary to the statute. It has, in fact, been repudiated even by the court that originated it.5 Second, it asks state courts to undertake the task of determining Indianness. Further, it is problematic because sovereign tribes are not bound to acknowledge the exception, which may lead to additional—often protracted—litigation.
Immediate Active Efforts
The proposed regulations indicate that active efforts should begin immediately.6 This is consistent with good practice in all child welfare cases. Early concentrated efforts on the part of professionals to achieve family preservation and/or permanency are part of what has led to declining foster care populations.
We recommend that early efforts also include early appointment of legal counsel for both parents and children. Attorney representation at the earliest stage of proceedings is consistent with good practice7 and with ICWA statutory and constitutional due process requirements.8
Limiting the Scope of What Is an “Emergency Removal”
Since Section 23.113 is meant to limit somewhat which ICWA protections for parents must be followed at the time of “emergency” situations, we suggest a limitation on this, so that it only applies to true emergency situations where a social services agency, law enforcement agency, or a judge, acting without an actual court hearing, removes a child (typically, only allowed by law for a 24-48-hour period without a court hearing) based on the presumptive belief that a child is in imminent danger of death or serious bodily harm. As the decision in Oglala Sioux Tribe v. Van Hunnik, 2015 WL 1466067 (D. S.D.) suggests, the initial hearing at which a judge or judicial officer considers evidence, and where parties appear in court, should not be considered as the “emergency removal.”
The Regulations should assure that this initial court hearing, often called the preliminary hearing, shelter care hearing, or preliminary protective hearing, does not take place without Native American parents being able to review the court petition and any associated affidavits or documents, being represented by legal counsel who is appointed prior to the beginning of the hearing, and being permitted to present evidence and cross-examine witnesses who are under oath at the hearing. What is referred to in this Section as “temporary emergency custody” for up to 30 days should only be ordered if the parents are provided with these rights.
2 Regulations for State Courts & Agencies in Indian Child Custody Proceedings, 80 Fed. Reg. 54, 14884 (March 20, 2015) (to be codified at 25 C.F.R. pt. 23).
5 In re A.J.S., 204 P.3d 543 (Kan. 2009).
6 § 23.106
7 Cohen & Cortese, Cornerstone Advocacy in the First 60 Days: Achieving Safe and Lasting Reunification for Families, 28 ABA Child Law Practice 3 (May 2009)
8 Oglala Sioux Tribe v. Van Hunnik, 2015 WL 1466067 (D. S. D.); Also consistent with § 23.113(a)(2).