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BIA updates ICWA guidelines

The Indian Child Welfare Act, passed by Congress in 1978, was designed to keep Native American children with Native American families. The intent of the law is to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families.

But nearly 40 years after ICWA was enacted, Indian children are still being removed from their homes and communities at a higher rate than other children. Implementation of the act has been inconsistent and interpretation of the rules varies from state to state.

To stem the tide and assure all states comply with the Act the same way, the Bureau of Indian Affairs updated ICWA regulations and guidelines in December. The update provides a uniform federal standard, consistency and clarity that will reduce litigation and produce better outcomes for Native American children.

The guidelines, which provide information on how to uniformly interpret and implement ICWA, are a supplement to the comprehensive 2016 ICWA regulations that became effective Dec. 12, 2016.

“This is a big change,” said Ted Nelson, National Indian Child Welfare Association board member. “The definitions are more clear. States have taken liberties with the interpretation in the past and there were a lot of loopholes. We hope they have been closed by these guidelines.”

Since its inception in 1983, NICWA’s mission has been to support compliance with ICWA, which it does through relationships with key policy makers in Congress and the states. Lobbying and testifying before Congress are also part of the its watch-dog role. The privately funded non-profit membership organization has been trying to get the definitions changed since the beginning.

“It’s been a constant war,” Nelson said. “We made enough noise that the BIA stepped in and made these guidelines.”

Nelson said there has always been problems with states’ interpretations of the law and expects there will still be issues going forward. But he hopes these guidelines and regulations will reduce them.

The updated guidelines replace the 1979 and 2015 versions, according to the BIA website. The agency acknowledged the inconsistency in enforcement of ICWA based on geography.

”This variation means that an Indian child and her parents in one State can receive different rights and protections under Federal law than an Indian child and her parents in another State. This disparate application of ICWA based on where the Indian child resides creates significant gaps in ICWA protections and is contrary to the uniform minimum Federal standards intended by Congress,” the website states.

Although the guidelines are not legally binding, they explain how to uniformly implement ICWA and will be helpful for agencies and courts working on complicated cases.

“We presume the standards will be very effective at making sure states don’t deviate from the rules,” Nelson said. “It will be up to Tribes’ ICWA representatives to make sure courts comply and the rules are followed.”

Nelson said most Tribes have ICWA experts. He is confident the Center for Behavioral Health is representing Seminole children properly and is monitoring ICWA cases. He said one of the significant changes in the guidelines gives parents the opportunity to present evidence to the court before a child is removed from the home.

“One of the biggest issues is placement preference,” Nelson said. “We want the child to remain with the family, or someone else in the family, or community, or Tribe, or some other Tribe before they look at a non-Native home.”

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