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.
Child welfare lawyers and judges sometimes view the Indian Child Welfare Act (ICWA) as a negative. “Oh, no! Child welfare cases are hard enough to handle, now I have to deal with this ICWA stuff on top of it.” Everyone takes a deep breath and pulls out the ICWA statute—and now the new ICWA regulations and guidelines —and pours over the details, trying to keep it all straight.
The truth is ICWA provisions can be of great assistance to practitioners, regardless of who they represent. When ICWA applies, it often means the family receives more support, assistance, and services—something attorneys and judges should welcome.1 The new regulations and guidelines build on ICWA’s benefits by providing key technical changes and greater clarity to help all child welfare professionals implement the statute’s provisions in practice.
This article provides specific examples of how the new regulations help attorneys representing children, parents, and agencies, as well as family and juvenile court judges handling any case that involving ICWA.
The regulations provide greater clarity because they require more efforts to determine if ICWA applies and therefore means the family may be eligible for more assistance. For example, the court must ask in every emergency, involuntary, or voluntary proceeding if anyone knows or has reason to know the child may fit the ICWA definition. If the court has reason to think the child may be an Indian child, the court must apply ICWA until it is confirmed that the child is not entitled to ICWA’s protections.
The regulations also decrease risks of litigation involving such issues as a child’s eligibility for tribal membership and whether ICWA applies to the case. This is because under the regulations, the tribe determines if the child is a member or is eligible to be a member with a parent who is a member. The state court cannot substitute its judgment on this point. This saves the court and attorneys valuable time previously spent litigating if the child was eligible for tribal membership and if ICWA applied.
If you represent children
The new regulations will support your efforts in several ways. For example, children’s preferences can be specifically considered in foster care and adoption placement decisions.2 Additionally, sibling attachments are now valued and can be considered in placement decisions.3 Another support is that children entitled to ICWA’s protections will retain that status and protection if legal proceedings continue after age 18.4 Finally, for children who are adopted, the regulations provide a clearer process to obtain information from the adoption file upon becoming an adult.5
If you represent parents
You will welcome how the new regulations’ clarify the definition of “voluntary.” Specifically, when a parent is alleged to have “consented” to a placement but in reality did so under threat of removal by the court or the state agency, that will not constitute “voluntary” placement and ICWA protections will still apply.6 Additionally, a court may not deny parents ICWA protection by concluding they do not participate in tribal activities,7 an Indian parent has had little contact with the child, or the court thinks the child’s blood quantum should not qualify the child for ICWA status.8
Parents’ counsel who were discouraged by the Supreme Court’s rulings in Baby Girl v. Adoptive Parent will also welcome the regulations’ clarification to include more parents among those protected by ICWA. The phrase “continued custody” that received such intense scrutiny in the Supreme Court’s decision now includes legal or physical custody as interpreted by tribal law, custom, or state law.9
Parents’ counsel is not required to make a transfer to tribal jurisdiction request in writing but can do it orally and the request can be made any time.10 Also, the regulations clarify that the removal of an Indian child must cease immediately if it is no longer necessary to prevent harm.11 A causal connection must also be found between the conditions in the home and that continued custody by the parent will result in serious emotional or physical harm.12 Another huge change is parents’ preferences can be considered in foster and adoptive placement decisions, even when those preferences differ from ICWA or tribal preferences.13 Parental concern about anonymity, particularly in newborn adoptions, can also be considered.14 (See Reconnecting with Indian Heritage: Restoring Hope for a Family for an example.)
Finally, provisions helpful to Indian families include the higher level of proof needed to remove the child, particularly the requirement of “active efforts” on the part of the state agency and not just reasonable efforts as in non-ICWA cases. The new regulations require that “active efforts” start immediately and provide some definitive examples of active efforts.15
If you represent agencies
The biggest benefit is the clarity the new regulations bring. The agency attorney can provide better advice to the agency client on some previously problematic interpretations and provisions that made sense in 1978 but are no longer as applicable. There are more details about how to notify parents and tribes, for example, and some flexibility in the process.
If you are a family or juvenile court judge
There is more clarity about your role determining if a case involves ICWA. The regulations specify how to proceed when a determination is made that the tribe has exclusive jurisdiction, or when a case with concurrent jurisdiction is being transferred to the tribal court.16 There is more detail on the “good cause” to refuse a transfer that may significantly limit the time-intensive litigation that section has caused.
A clearer understanding of the role of the Bureau of Indian Affairs in locating tribes and qualified expert witnesses, and helping maintain ICWA adoption files is also helpful. There have been problems in the past locating a good quality expert to testify in a removal or termination matter; the regulations now provide flexibility while ensuring the expert knows the social and cultural standards of the child’s tribe. The court and the agency will have more guidance when questions arise about departing from the placement preferences.
The technical changes and clarifications in the new ICWA regulations help all frontline child welfare professionals. By applying ICWA’s provisions according to the regulations, child welfare-involved families can benefit from increased services and supports to help keep them together and preserve their Indian heritage and traditions. By relying on the new regulations and guidance, attorneys and judges can better ensure these families access the supports they need.
Margaret Burt, JD, is an attorney in private practice in upstate New York. She has specialized in child welfare law for over 35 years and has represented parents, agencies, children, and foster parents. She trains and presents nationally to agencies, attorneys, judges, and tribes on child welfare legal topics, including ICWA.
1. E.g., Active efforts 25 C.F.R.§ 23.2.
2. 25 C.F.R.§ 23.132(c).
3. 25 C.F.R.§ 23.132(c); 25 C.F.R.§ 23.2.
4. 25 C.F.R.§ 23.103(d)
5. 25 C.F.R.§ 23.138 et. seq.
6. 25 C.F.R.§ 23.2. ‘Involuntary proceeding’
7. 25 C.F.R. § 23.103(c).
8. 25 C.F.R.§ 23.108.
9. 25 C.F.R.§ 23.2. ‘Parent or parents’
10. 25 C.F.R.§ 23.115
11. 25 C.F.R.§ 23.113.
12. 25 C.F.R.§ 23.121.
13. 25 C.F.R.§ 23.130(c)
14. 25 C.F.R.§ 23.129(b)
15. 25 C.F.R.§ 23.2.
16. 25 C.F.R.§ 23.110; § 23.115 et seq.