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The Indian Child Welfare Act (ICWA) (25 U.S.C. §1901 et seq.) was enacted in 1978 to address legitimate fears that many Indian children were being removed from their biological families and placed in non-Indian foster and adoptive homes. To remedy this situation the ICWA created “placement preferences” and procedures designed to result in the placement of Indian children with family members or other Indian families. However, the problem persists. It is thought that in spite of the ICWA, Indian children are three times more likely to be removed from their families than non-Indian children. Furthermore, the ICWA’s “placement preferences” for tribal members are being routinely ignored by child welfare agencies and state courts.

Over the years, Indian tribes and advocacy organizations have been working to insure full compliance with the ICWA. Their efforts were energized by a widely reported 2013 United States Supreme Court case. This decision forced an Indian child to be removed from her Indian father’s home and returned to the non-Indian couple who had been caring for her when she was placed with them for adoption by a non-Indian mother. Adoptive Couple v. Baby Girl, 570 U.S. _____, 133 S. Ct. 2512, 186 L.Ed.2d 729, 2013 U.S.  LEXIS 4916.

As a result of this decision, issues that affect placement alternatives for Indian children have gotten significant attention especially from those who are interested in the ICWA’s enforcement. The U.S. Department of the Interior, Bureau of Indian Affairs (BIA) has a major role in these efforts. So far, this year the BIA has issued new guidelines and has proposed regulations to improve adherence to the letter and spirit of the ICWA. The guidelines and regulations are similar but not identical. Both deserve careful reading.

Both have several major goals, including for example, assuring tribal notice of and full participation in adoption and custody proceedings involving Indian children and clarifying the process for determining who is an Indian child.  The primary objective is the vigorous enforcement of the ICWA’s preference for a tribal family for Indian children. Generally, tribes and Indian advocacy organizations support the guidelines and regulations. They also face harsh criticism.

The greatest criticism focuses on the use of the “good cause” exception that allows courts to deviate from the statutory preference for a tribal family under certain conditions. Historically, this “good cause” exception has been used to bypass the “placement preferences”.  The guidelines and proposed regulations intend to limit state court and child agency discretion when making placement decisions by making it difficult for a court or agency to use the “good cause” exception to deviate from the ICWA’s preference for a tribal family.

Indeed, the guidelines prohibit “an independent consideration of the best interests of the Indian child” because the placement preferences of the ICWA reflect what is in the Indian child’s best interests.  (Guidelines F.4. (c) (3)). Until now, evidence of the child’s bonding and attachment to the non-Indian family has been used to show “extraordinary emotional needs” to justify good cause to deviate from the ICWA placement preferences. However, the regulations, like the guidelines, bar the use of evidence of bonding and attachment when determining placement preferences.

The child welfare community in general and all those who have a stake in the ICWA are now waiting for the BIA to issue final regulations.

“Guidelines for State Courts and Agencies in Indian Child Custody Proceedings”, 80 Fed. Reg. 10146 (Feb. 25, 2015). “Regulations for State Courts and Agencies in Indian Child Custody Proceedings”, 80 Fed. Reg. 14880 (proposed Mar. 3, 2015).

Professor Harvey Schweitzer teaches Introduction to Legal Research and Writing at St. Francis School of Law.  In addition, Prof. Schweitzer has developed a new course in Children and the Law for St. Francis School of Law.  Prof. Schweitzer practices law in Maryland and the District of Columbia and is co-author of Foster Care Law:  A Primer (2004 Carolina Academic Press).  He has handled hundreds of adoption and foster care cases, and is a member of the American Academy of Adoption Attorneys.