Understanding the 2016 Indian Child Welfare Act Regulations

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 Indian Child Welfare Act (ICWA)¹ was passed in 1978 in response to widespread removals of Native American children, often for minor reasons. It came on the heels of official policies aimed at eroding tribal sovereignty and culture. ICWA is unique in that it seeks to protect children, their families, and the right of tribal governments to exercise parens patriae authority over their citizens.²

Although disproportionality of Native American children in the child welfare system has declined since ICWA became law, a 2015 report by the National Council of Juvenile and Family Court Judges shows that it remains a significant problem.³ On average, Native American children are 2.7 times more likely to be in foster care than their peers. Twenty-one states have a disproportionate number of Native American children in foster care. 

This article explains key parts of ICWA for child welfare judges, attorneys, and agency staff. It reflects updates and clarifications found in the 2016 Federal ICWA Regulations and Guidelines. Though there are concrete steps to comply with ICWA, it can help to understand the spirit – an aim to counteract social injustice. When a case involves Native American families, therefore, it is important to keep the history and current situation of disproportionality in mind. 

The New Regulations

The Bureau of Indian Affairs (BIA) updated the regulations governing ICWA in 2016.⁴ If you are new to ICWA, this is a good starting place as the regulations comprehensively cover ICWA. If you have more experience, you will find these regulations primarily clarify areas of inconsistency around the country rather than add new concepts. 

Key Concepts

The new regulations resolve ambiguities and address several questions that have been problematic over the years in rarer factual situations, like what to do if there is more than one tribe or if a state extends jurisdiction beyond age 18? This article covers only the key concepts that apply to most ICWA cases in child welfare proceedings.⁵

Applicability

The first question is - is it an ICWA case? In short, ICWA applies in “custody proceedings” where the child is an “Indian child.”

Custody proceedings listed in ICWA mean:

• child in need of care⁶
• termination of parental rights
• adoption
• guardianship/conservatorship
• status offense cases if any part of the case results in removal⁷

The Act also lists two exceptions:

• delinquency proceedings⁸
• divorce or custody proceedings where custody will be awarded to a parent⁹

An Indian child is defined as an unmarried person under 18 who is a citizen of a federally recognized tribe or the biological child of a tribal member and eligible for citizenship.¹⁰

Inquiry

The court must ask at the start of a proceeding, such as an emergency or shelter care hearing, if the participants have any reason to know the child may be an Indian child. 

The court must instruct the parties to inform it if they later learn of any reason to know the child may be an Indian child.

If there is any reason to know the child may be covered, the court must treat the case as an ICWA case pending verification.¹¹

Best practice

Though the regulations indicate that the court should ask initially, and place the burden on parties to inform the court thereafter if any new information arises, the 2016 Guidelines and many states’ best practice guides recommend asking at every hearing if the participants have reason to know the child may be an Indian child.¹²  

While ICWA does not cover cases where there is not yet court involvement,¹³ as the 2016 Guidelines note, agencies will benefit from asking about possible tribal affiliation as soon as possible. Tribes may have resources that can help prevent removal, including services and placements.¹⁴

Practice tips

How to ask? Given the past systemic efforts to break up Native American families, including through boarding schools¹⁵ and the Indian Adoption Project,¹⁶ families may be reluctant to acknowledge their tribal affiliations to government entities. Explaining the reason for the inquiry can be helpful, stating something like, “If your child is eligible to enroll with a tribe, there may be additional services and support.”

In asking, it is appropriate to ask about American Indian/Alaska Native ethnicity as that may lead to information about whether ICWA applies. However, it is important to understand ICWA is not based on race,¹⁷ but political relationship with the tribe and tribal citizenship laws may not be based on ethnicity in a predictable way. 

Questions to ask children and close and extended family members include: 

Has anyone in your family:

• ever lived on tribal land?
• participated in tribal events?
• received services from a tribal office/agency or the federal Indian Health Service?
• received benefits from a tribe?

If you receive any positive responses, ask for the name of the tribe and location. This can help narrow down the correct tribe. With over 560 federally recognized tribes, ‘Cherokee’ or ‘Potawatomi’ will not be precise enough – there are three Cherokee and five Potawatomi tribes, for example. 

Jurisdiction

There are three types of jurisdiction under ICWA – exclusive tribal jurisdiction, concurrent tribal-state jurisdiction, and emergency jurisdiction. 

Exclusive jurisdiction

Tribal courts have exclusive jurisdiction over a proceeding if the child resides or is domiciled on tribal land,¹⁸ or if child is a ward of a tribal court.¹⁹ ICWA relies on common law definitions of domicile²⁰ and children typically take the domicile of their parents.²¹

If a state court finds the tribe has exclusive jurisdiction, the state court notifies the tribal court, dismisses the case, and sends all relevant information to the tribal court.²²

Concurrent jurisdiction

If an Indian child does not live on tribal land and is not a ward of a tribal court, the case falls under ICWA’s concurrent jurisdiction provisions. The parent or the tribe may request transfer to tribal court and the state court must grant that request unless:

• either parent objects,
• the tribal court declines the transfer, or 
• there is good cause for denying the transfer.²³

The ICWA regulations list criteria the state court should not consider in a good cause hearing:

• that the proceeding is at an advanced stage if the parent or tribe received late notice,
• that there were prior proceedings²⁴ where no request to transfer was made,
• whether the child’s placement might be affected by transfer,
• the child’s cultural connections with the tribe,
• socioeconomic conditions of the tribe, or
• any negative perceptions of tribal social services or the tribal court.²⁵

If the case is not transferred under concurrent jurisdiction, tribes have a right to intervene in state foster care or termination proceedings at any time.²⁶

Emergency jurisdiction

Though many states’ emergency and dependency phases are not clearly distinct, ICWA treats emergency situations as separate proceedings. The emergency proceeding ends when a continued custody proceeding is initiated, the child is physically returned, or the case is transferred to tribal court.

ICWA provides a high standard for removing a child and a 30-day timeframe. 

Under ICWA, an emergency placement must terminate when there is no longer a risk of “imminent physical damage or harm to the child.”²⁷

Emergency placements should not go beyond 30 days without a court finding that: 

• the child faces imminent physical damage or harm if returned,
• the court has been unable to transfer the case to tribal court, and
• it has not been possible to initiate a child custody proceeding.²⁸

Given the tight timeframes, not all ICWA provisions apply in the emergency proceeding. A chart in § 23.104 lists which provisions do not apply. However, the guidelines encourage following many of the provisions where possible, such as inquiry, notice, placement preferences, and active efforts.²⁹

Notice

The petitioner in any involuntary proceeding must notify the parents and the tribe if they have reason to know ICWA may apply.³⁰ A copy of the notices are sent to the BIA regional director.³¹

Notice requirements

• Notice must be sent by registered or certified mail with return receipt requested.³²
  
  
• Notices under ICWA must include specified identifying information, information about the parties’ rights, and copies of documents. The requirements can be found in § 23.111(d).
  
  
• Foster care and termination proceedings cannot be held until at least 10 days after the notice is received by the tribe or parent and they may request up to 20 additional days.³³

Practice tips

• Additional notice by email, which may speed up proceedings, is encouraged.³⁴ Many tribes have a designated ICWA agent who should receive the notice. A list is published at www.bia.gov.
  
  
• Unknown tribe or parents – If the specific tribe or a parent’s identity is unknown, notice must be sent to the regional BIA office, which will try to help locate the tribe. § 23.111(e). Notice should be sent to the BIA regional director with as much identifying information as possible. This list of regional offices is in § 23.11.³⁵
  
  
• The regulations increase the role of BIA regional offices regarding notice copies and finding unknown parties. They can also help troubleshoot issues that arise.  

Determination of Tribal Membership

Tribes, as sovereign governments, have the authority to establish their criteria for membership/citizenship.³⁶ State courts must find on the record whether ICWA applies, but this is based on the tribes’ testimony or documentation regarding eligibility.

The regulations and Guidelines reject the ‘existing Indian Family’ exception.³⁷ That exception, which had developed in case law, meant that ICWA could be found not to apply in situations where a state court perceived that a family had not been living in a way that conformed to tribal roles and customs. Consensus on the viability of the exception, even in states that had adopted it, has been in question for some time. In fact the state that first articulated it expressly rejected it stating “the existing Indian family doctrine appears to be at odds with the clear language of ICWA.”³⁸ Only a few states ever adopted it, and a number of those do not follow it in practice.³⁹

Similar issues arose in the recent Supreme Court case, Adoptive Couple v. Baby Girl, popularly known as the Baby Veronica case. The case involved a mother’s decision to place her child in a private adoptive placement over the father’s objection. The father, who is Cherokee, had not had physical or legal custody of the child. Thus, the Court concluded there was no “break up” of an Indian family by allowing the adoption.⁴⁰ This case has more direct impact on private cases as the Court suggested the holding was limited to private cases.⁴¹

Another major reason the existing Indian family exception is difficult to defend is that tribes, as sovereign governments, are not bound to recognize the exception and can assert that the state cases do not have precedential authority over them.

Evidence

ICWA requires high standards of proof and specific substantive findings. It also has a unique requirement for expert testimony. Congress intended for these to place a strong check on biases against tribal communities and cultural practices and directly combat the well-documented history of removal for insubstantial reasons. 

Standards of proof

• Foster care placements require clear and convincing evidence.
• Termination of parental rights requires evidence beyond a reasonable doubt.
• There must be evidence to show a causal relationship between the conditions in the home and potential “serious emotional or physical damage to the child,” if returned.⁴²

Qualified expert witnesses

Testimony from a Qualified Expert Witness (QEW) is required on the safety concerns in foster care and termination decisions.⁴³ Along with the standard of proof, this helps the court ensure decisions are made objectively, with cultural context. The QEW should be able to put the parent’s strengths, needs, and appropriate services into a cultural context. 

• A QEW should be able to testify “as to the prevailing social and cultural standards of the Indian child’s tribe.”⁴⁴
• The regularly assigned social worker for the child may not serve as a QEW even if they have expertise in the child’s tribe.⁴⁵

Active efforts

In ordering a foster care placement or termination of parental rights in an ICWA case, the court must find that active efforts were provided to prevent removal or reunify the family and those efforts were unsuccessful.⁴⁶ These should be tailored to the family and provided in collaboration with the tribe and the family.⁴⁷

Active efforts in ICWA predates the more commonly applied reasonable efforts standard in the Adoption and Safe Families Act.⁴⁸ Active efforts have traditionally been considered a higher level of activities to help a family. The distinction between active and reasonable efforts has blurred because all families deserve the highest level of support from the child welfare agency. This intensive or active level seems “reasonable.” The regulations clarify this with a more concrete list of minimal efforts that should be provided:

• A comprehensive assessment of the family with a focus on safety.
• Identification of and active assistance for parents with appropriate services.
• Inviting tribal representatives to participate in case planning, service provision, and placement decisions.
• A diligent search for extended family members for placement and other supports.
• Working toward keeping siblings together.
• Regular visitation in the most natural setting possible.
• Liberal use of trial home placements.
• Assisting with tertiary needs such as “housing, financial, transportation…and peer support services.”
• Offering alternatives to traditional services if optimal services do not exist. 
• Postreunification services.⁴⁹

Placement Preferences

Placement preferences must be followed in ICWA cases unless there is a determination on the record that there is good cause to depart from them.⁵⁰

In foster care or preadoptive placements, preference should be given to placements in the following order:

• extended family
• a foster home approved or selected by the tribe
• an Indian foster home approved by the state or other nontribal authority
• an institution approved by an Indian tribe or organization

In adoptive placements, a placement should be given preference in the following order:

• a member of the Indian child’s extended family
• other members of the Indian child’s tribe
• other Indian families⁵¹

A good cause determination to depart from placement preferences may be made on the record based on:

• the request of the parents or child,
• sibling attachment,
• extraordinary physical, mental, or emotional needs of the child, or
• unavailability of a suitable preferred placement after a diligent search.⁵²

Good cause determinations should not be based on: 

• socioeconomic conditions of the proposed placement, or 
• ordinary bonding that occurs with time spent in a placement in violation of ICWA.⁵³

Invalidation for ICWA Violations 

The child, parent, or tribe, may petition to invalidate actions in foster care and termination proceedings when ICWA is violated.⁵⁴ This requires rehearing the matters related to the violation and may lead to delays for the child and family. 

Petitions to invalidate can be filed for violations of: 

• exclusive and concurrent jurisdiction, intervention, and full faith and credit provisions;⁵⁵
• notice, appointment of counsel for parents, right to review documents, active efforts, standards of evidence and qualified expert witnesses; and⁵⁶
• voluntary termination procedures.⁵⁷

Conclusion

The letter of law in ICWA leans toward rights, responsibilities, and compliance. The spirit of ICWA aims to counteract social injustice. This spirit becomes particularly relevant when Native American youth describe how they have benefitted from the activities in their communities or from parents who have had a unique service experience that helped them reunify —such as a positive Indian parenting program⁵⁸ or a tribal healing and wellness court.⁵⁹ The guidance in this article and others in this CLP issue will help you experience some of these successes in your own practice.

Scott Trowbridge, JD has been a staff attorney with the ABA Center on Children and the Law since 2007 providing technical assistance to states and tribes, including on ICWA. He was previously a supervisor and caseworker with the State of Tennessee’s child welfare agency.

The author thanks Shanna Knight, JD, National Indian Child Welfare Association; Julia Butner JD, Barton Fellow, ABA Center on Children and the Law; and Judge Anne L. Simon, Louisiana (Retired) for their reviews of the article.

This article was developed in collaboration with the Pelican Center for Children and Families, which administers the Louisiana Court Improvement Program under a sub-grant agreement with the Louisiana Supreme Court.

Endnotes

1. 25 U.S.C. § 1901 et. seq.

2. Indian Child Welfare Act Proceedings; Final Rule, 81 Fed. Reg. 38,778 (June 14, 2016), 25 C.F.R. § 23.101. (For brevity, because this brief largely refers to the regulations, citations are shortened – 25 C.F.R. § 23.xxx for the regulations, FR p. 3xxxx for the comments to the rule.)

3. Summers, Alicia. Disproportionality Rates for Children of Color in Foster Care. National Council of Juvenile and Family Court Judges,2015.

4. FR p. 38778.

5. ICWA also covers some private and voluntary cases not addressed thoroughly here.

6. U.S. Department of the Interior, Bureau of Indian Affairs. Guidelines for Implementing the Indian Child Welfare Act, 2016, 79 (hereinafter BIA Guidelines).

7. 25 C.F.R.§ 23.103.

8. 25 U.S. Code § 1903(1), 25 C.F.R. § 23.2. ICWA would apply if a subsequent child welfare petition was filed on a delinquent child.

9. 25 U.S. Code § 1903(1), 25 C.F.R.§ 23.103.

10. 25 C.F.R.§ 23.2; 25 C.F.R.§ 23.103; FR p. 38868.

11. 25 C.F.R.§ 23.107.

12. BIA Guidelines, 2016, 11.

13. 25 C.F.R.§ 23.103(b)(4); FR p. 38796.

14. BIA Guidelines, 2016, 11. 

15. National Museum of the American Indian. “Boarding Schools: Struggling with Cultural Repression,” Native Words Native Warriors.

16. The Adoption History Project, University of Oregon. “Indian Adoption Project.”

17. As expressly noted in 42 U.S. Code § 1996b(3) ‘Interethnic Adoption.’ 

18. “Includes reservations and land held in trust. See, “Reservation,” 25 C.F.R.§ 23.2, BIA Guidelines, 2016, 85.

19. 25 C.F.R. § 23.110.

20.The parent’s domicile is the place where the parent has been physically present, regard as their permanent principal home, and intend to return to if they are not currently residing there. If the parents are not married, domicile follows the child’s custodial parent. 25 C.F.R.§ 23.2.

21. “Parent” is used here as the far more common scenario, but most provisions of ICWA regarding parents also apply to an “Indian Custodian” - a citizen of a federally recognized tribe who has custody of the Indian child by tribal custom/law or state law. 25 C.F.R.§ 23.2; FR p. 38795.

22. 25 C.F.R.§ 23.110.

23. 25 C.F.R.§ 23.117.

24. Including, as ‘proceedings’ is defined here, a TPR proceeding following a foster care proceeding.

25. 25 C.F.R.§ 23.118(c).

26. 25 U.S.C. § 1911; C.F.R.§ 23.111.

27. 25 C.F.R.§ 23.113.

28. 25 C.F.R.§ 23.113(e).

29. BIA Guidelines, 2016, 28-29.

30. 25 C.F.R.§ 23.111(a).

31. 25 C.F.R.§ 23.11, FR p. 38807. 

32. 25 C.F.R.§ 23.111(c).

33. 25 C.F.R.§ 23.112.

34. 25 C.F.R.§ 23.111; BIA Guidelines, 2016, 20.

35. 25 C.F.R.§ 23.11.

36. 25 C.F.R.§ 23.108.

37.. Indian Child Welfare Act Proceedings; Final Rule, 81 Fed. Reg. 38,868 (June 14, 2016), 25 C.F.R. § 23.103(c).

38. In re A.J.S., 204 P.3d 543, 549 (Kan. 2009).

39. Neither Tennessee nor Louisiana, for example, recognize it in agency policies. Tenn. DCS policy 16.24; Louisiana Department of Social Services, Office of Community Services, Family Services, Appendix 5-C Indian Child Welfare Act (ICWA).

40. Adoptive Couple v. Baby Girl, 133 S. Ct. 2552, 2560 (2013).

41. Id.

42. 25 C.F.R.§ 23.121.

43. 25 C.F.R.§ 23.121(b).

44. 25 C.F.R.§ 23.122.

45. 25 C.F.R.§ 23.122(c)

46. 25 C.F.R.§ 23.120.

47. 25 C.F.R.§ 23.2.

48. FR p. 38791.

49. 25 C.F.R.§ 23.2.

50. 25 C.F.R.§ 23.129.

51. 25 C.F.R.§ 23.130.

52. 25 C.F.R.§ 23.132(c).

53. 25 C.F.R.§ 23.132(d)-(e).

54. 25 C.F.R.§ 23.137.

55. 25 C.F.R.§ 23.137; 25 U.S.C. §1911.

56. 25 C.F.R.§ 23.137; 25 U.S.C. § 1912.

57. 25 C.F.R.§ 23.137; 25 U.S.C. § 1913.

58. http://www.nicwa.org/success/positive_indian_parenting.asp