Overview of the Updated Bureau of Indian Affairs ICWA Guidelines and Proposed Federal Rule

 Judge Victoria Sweet

 Victoria Sweet, JD


On February 24, 2015, the Bureau of Indian Affairs (BIA) released revised Indian Child Welfare Act (ICWA) Guidelines, effective immediately. The Guidelines have not been revised since they were first released in 1979. The revisions were created in response to feedback received at listening sessions and through written public comments regarding concerns about the effectiveness of the 1979 Guidelines. In particular, they were intended to address ambiguities that have made it difficult for judges around the country to consistently comply with the Act.

Shortly after, on March 18, 2015, the BIA published a proposed Federal Rule. The proposed Rule incorporates most of the revised Guidelines, with a few minor differences. This Rule would make the Guidelines mandatory instead of merely advisory in nature.

To assist with understanding the changes in both the Guidelines and proposed Rule, this document summarizes several key changes.


Key Changes

Changes which will be important for judges to note come under the topics of: Active Efforts, Emergency Removals, Good Cause to Deny Transfer to a Tribal Court, Good Cause to Deviate from ICWA Placement Preferences, Notice.


Active Efforts

  • The Guidelines and Rule give examples to make it easier for a judge to determine if actions taken by an agency are sufficient to meet the standard

  • Active efforts must begin prior to the commencement of a proceeding, the moment the possibility exists that an Indian child might be removed from the custody of a parent or Indian custodian

  • Active efforts must be conducted while investigating whether a child is an Indian child

  • Active efforts must last until the commencement of a proceeding

  • Agencies must document all active efforts

  • A showing must be made that active efforts were unsuccessful

        

 Emergency Removal

  • Must be as short as possible

        
  • Explicitly states the standard for an emergency removal as “it is necessary to prevent imminent physical damage or harm to the child”

        
  • Shortens time period for temporary custody without a hearing from 90 days to 30 days except under extraordinary circumstances

        
  • The Tribe has the right to intervene during an emergency removal hearing

             

Good Cause to Deny Transfer to a Tribal Court
Factors that should no longer be considered:

  • The proceeding is at an advanced stage

         
  • The level of contacts a child has with the Tribe

  • T

    he socio-economic conditions or perceived inadequacy of the Tribe or tribal entities

        
  • The prospective placement

*Deleted the requirement that requests to transfer to a tribal court be made “promptly after

receiving notice of the proceeding” and clarifies instead that the right to transfer is available at any stage of a proceeding.


Good Cause to Deviate from ICWA Placement Preferences

  • The agency bears the burden of proof to show through clear and convincing evidence that a diligent search was made and why preferences could not be met

  • The court must then determine if good cause exists to deviate

  • Good cause does not include the normal bonding/attachment that occurred under a non- compliant placement

        
  • Good cause does not include an independent consideration of the child’s best interests; it is assumed that the ICWA placement preferences are in the child’s best interests

        
  • Placements should not be considered unavailable as long as they conform to prevailing social and cultural standards

               

Notice

  • Notice is required for each proceeding, not just the first or last

        
  • Sending notice registered mail, return receipt requested is the minimum required method

             


About the Author
Victoria Sweet (Anishinaabe) joined the National Council of Juvenile and Family Court Judges as a program attorney in June 2014 after working as the legal fellow at the Indigenous Law and Policy Center at Michigan State University College of Law. She is a member of the Minnesota State Bar. Sweet received her JD from Michigan State University with a certificate in Indigenous Law and Policy, attended the Pre-Law Summer Institute at the American Indian Law Center, and earned her MAEd and BA from George Wythe University. She spent a summer working at the White Earth Tribal Court, a summer working at the Indian Law Resource Center, and was both a research assistant and teaching assistant for Professors Matthew Fletcher and Wenona Singel. In addition, she participated in an ICWA monitoring program in Michigan state courts. Prior to starting her law career, Sweet worked as a high school teacher and an educational lecturer, speaking at workshops and seminars across the United States and Canada. She has published articles on human trafficking and the human security of Indigenous women, has volunteered in international community development organizations, run workshops and conferences for Native youth, and served on the Board of Directors for the Urban Indian Center of Salt Lake.


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