How New ICWA Guidelines, Regulations Support Native American Children

The Indian Child Welfare Act (ICWA) came about because the federal government and states had a long history of treating Native American* parents as unfit just by their being Indian.

As recently as the 1970s, mothers knew to hide their children when strange white sedans appeared on the reservation because social workers would scoop up children and quickly arrange for them to be adopted by white families, often in the Midwest or further east.

During Congressional hearings held in the 1970s, Congress recognized between 25 and 30 percent of Native American children were being removed from their homes by states, and 80 percent of those children were being sent to live outside their communities with non-Indian families. Today, while we have seen a decrease in these rates, a study published by the National Council of Juvenile and Family Court Judges found that many states are still placing Indian children into foster care at a disproportionately high rate, sometimes as much as 12 times their population rate.

After decades of disproportionate placement of Native American children into foster care and inconsistent application of ICWA by states, the Bureau of Indian Affairs (BIA) last year published new regulations and guidelines to help states consistently apply the law and provide best practices for reunifying an Indian child with his or her family and keeping him or her connected with family, culture and community. Never in the 39 years of ICWA have we had this much guidance on how to follow the law.

This article examines key provisions of the new regulations and guidelines, including those for identifying an Indian child, providing active efforts, and applying placement preferences.

The Difference Between the Regulations and Guidelines

The regulations were created by a formal rule-making process, which makes the regulations binding law that state courts must follow. The guidelines, on the other hand, are non-binding recommendations that address best practices and practical approaches to following ICWA and the new regulations.

Both the regulations and guidelines went into effect on December 12, 2016.

Is the Child an Indian Child?

Perhaps one of the most important provisions of the new regulations is the requirement that state courts ask everyone whether they “know or have reason to know if a child is an Indian child” in every emergency, voluntary, or involuntary child custody proceeding. This includes proceedings for placing a child in foster care or for adoption, even when placement is voluntary.

It’s important to identify children to whom ICWA applies early so that we know when we have to contact tribes, apply active efforts, and place children with appropriate placements. Native American children also benefit from receiving support and services from their tribes, which in turn can help support foster and adoptive parents by providing them with additional resources.

To assist states with discovering whether a child is an Indian child, the regulations include a list of indicators, including self-identification (e.g., parents telling the court that they are Native American, Indian, or members of a tribe), or the fact that a child lives on a reservation or Alaska Native village. The guidelines recommend interpreting these factors expansively and erring on the side that ICWA applies, because it is better to apply ICWA and find out later that ICWA does not apply rather than the other way around. Once anyone has any reason to know a child may be an Indian child, the regulations tell courts they must apply ICWA unless or until the tribe or possible tribes determine that the child is not an Indian child.

Active Efforts

ICWA requires that agencies or parties involuntarily removing an Indian child provide active efforts — as opposed to reasonable efforts, which are required in non-ICWA cases — to reunify the child with his or her parents if they spend time in foster care. These efforts are required up until a court orders a termination of the biological parents’ parental rights.

The new regulations help practitioners by defining what “active efforts” means and by providing 11 examples of active efforts. According to the regulations, active efforts are the affirmative, active, thorough, and timely efforts intended to keep an Indian child with his or her family. The regulations’ examples reinforce the need to contact and consult extended family members and bring them to the table. Foster parents can help with active efforts by supporting extended family member involvement in Indian children’s lives, reaching out to the tribe to share information, and taking advantage of opportunities to integrate a community’s services into their own care for foster children.

Placement Preferences

ICWA sets preferences for the placement of Indian children both for foster care and for adoptive placements, regardless of whether the parents voluntarily place their children in care. In addition, placement preferences continue after the termination of biological parents’ parental rights because ICWA is there to protect the child’s relationship with their tribe and culture. Although a lot of ICWA focuses on reunification with parents, it’s also important to note that a child’s relationship with other relatives, their tribes and their communities is not (or should not be) severed with the parental rights.

In both foster care and adoption cases, ICWA gives first preference to members of the child’s extended family. “Extended family” can be defined by the tribe, but if the tribe does not provide a definition, then grandparents, aunts, uncles, cousins, and siblings who are at least 18 years old will all be considered preferred placements. Native American extended family members are not preferred over non-Native family members.

Courts cannot place children in non-preferred placements unless there is “good cause;” however, except for telling courts that parents’ and children’s preferences must be considered (where appropriate), ICWA did not previously tell us what good cause could look like. The regulations fill this gap by stating that “good cause” should be based on the following:

• The request of one or both parents if they have reviewed the placement options that would comply with the preferences;
• The request of the child, if of sufficient age and capacity;
• The presence of a sibling attachment that can only be maintained through a specific placement;
• Extraordinary physical, mental, or emotional needs, such as specialized treatment services;
• Unavailability of a preferred placement after a diligent search.

There may be other circumstances that qualify as “good cause” in addition to these, but the regulations prohibit courts from considering the socio-economic status of one placement versus another (e.g., which placement has a bigger house, more money, etc.). The regulations also tell courts that they cannot deviate from the placement preferences because of ordinary bonding and attachment that occurred because of time a child spent in a non-preferred placement that was made in violation of ICWA.

The BIA noted in its commentary on the regulations that “certain bonding and attachment theories, presented by experts in foster care, termination of parental rights, and adoption proceedings are based upon Western or Euro-American norms and may have little application outside that context.” Parents and children who have preferences about placement should be informed about good cause so that they’re prepared to give a judge thoughtful reasons for wanting a specific placement. To help support children and youth especially, foster and adoptive parents, agencies, and tribes should have conversations with children about their preferences and document the children’s reasoning.

It’s important to note that the fifth good cause reason, the unavailability of a placement, is defined by the Indian community. We should also listen to the tribal community to learn more about whether a placement is safe or if it is unavailable by community standards. For their part, relatives and others who would like to become placements should let the state and tribe know as soon as possible, especially so there is time to complete the process to become licensed as a foster parent or approved as an adoptive home.

Regulating Outcomes Across States

Before the publication of the ICWA regulations and guidelines, Native American families faced different outcomes depending upon the state where they lived because states inconsistently applied the law. The regulations help support Native American families and children by ensuring that courts, case workers, and others identify Indian children early so that ICWA can be applied and supports and services can be provided by their Indian communities and extended families.

ICWA is about keeping a child in the center of the circle with the understanding that the circle around the child is wide and includes parents, foster and adoptive parents, other relatives and community members, and the tribe itself.

*Author’s Note: America’s indigenous people refer to themselves in many different ways. Here, the term Native American refers to American Indian and Alaska Native individuals and families. ICWA uses the term “Indian” to refer to American Indian and Alaska Native individuals and families, so Indian will sometimes be used interchangeably with Native American.

By Shanna Knight

Shanna Knight is the ICWA Specialist at the National Indian Child Welfare Association in Portland, Oregon. She provides ICWA policy work and training to tribal and state social workers, attorneys, and judges across the country. She is a graduate of the University of Idaho College of Law.