New Regulations will Improve Compliance with ICWA and Keep Families Together

Published on Jun 08, 2016

June 8, 2016


New Regulations will Improve Compliance with Indian Child Welfare Act and Keep Families Together

Today, the Department of the Interior released new final regulations governing state court and agency child custody proceedings to insure uniform compliance with the Indian Child Welfare Act of 1978 (ICWA). The previous ICWA regulations had a narrow scope and covered only the administration of ICWA service programs authorized under the Act. Revisions to the regulations were sorely needed and long overdue, as implementation guidance has been lacking and compliance with ICWA has been highly inconsistent since passage of the Act. 

“The new regulations will keep families together,” explained NCAI President Brian Cladoosby, praising the development. “Clear and consistent rules for child placement also will result in faster and more reliable placement decisions for all affected families, creating better outcomes for our children.”

Highlights of the updated regulations include:
Clear guidance on “active efforts” that state courts and agencies must employ to provide services and programs designed to prevent removal and encourage reunification
Clarification of notice and time frames to improve compliance and expedite the process
A requirement that state courts and agencies inquire whether ICWA applies in every child custody proceeding
Procedures governing emergency removal of Indian children
Clarification that the “existing Indian family doctrine” is not an exception to ICWA’s application and only the tribe has the power to determine a child’s membership status

Preference for relative placement is considered in the best interest of all children, not just Native American children. Relative child placement preference is the law in 45 states. It is also federal law under Title IV-E of the Social Security Act. This is because research and best practice prove that children fare better when placed with relatives.

The revised regulations’ focus on keeping families together is especially important to Native families given the history. In 1959, as part of the federal government’s “termination” policy of the era, the Bureau of Indian Affairs entered a contract with the Child Welfare League of America to implement a nationwide adoption policy for Native American children. Entitled the “Indian Adoption Project,” the policy mandated that Indian children were to be adopted out to non-Indian families. Project-approved state agencies took on the responsibility of enacting this policy of “Indian extraction,” where Native American children were routinely removed from their homes and schools by state social workers based on vague allegations of poverty and neglect.  By the time ICWA was passed in 1978, 35 percent of all Native American children had been taken from their families and placed in adoptive, foster, or institutional care. In passing ICWA, Congress intended to combat this deliberate, collaborative abuse of the child welfare system, to reinstate tribal government authority to determine child placement, and to restore the integrity of Indian families. 

Despite the passage of ICWA, the abuse of Native American children and families continues to the present. In 2015, in Oglala Sioux Tribe v. Van Hunnick, the United States District Court for South Dakota found that a South Dakota state judge and the State Department of Social Services “failed to protect Indian parents' fundamental rights to a fair hearing by not allowing them to present evidence to contradict the State's removal documents. The defendants failed by not allowing the parents to confront and cross-examine DSS witnesses. The defendants failed by using documents as a basis for the court's decisions which were not provided to the parents and which were not received in evidence at the 48-hour hearings.” The new regulations will help to end these abuses.  


About The National Congress of American Indians:
Founded in 1944, the National Congress of American Indians is the oldest, largest and most representative American Indian and Alaska Native organization in the country. NCAI advocates on behalf of tribal governments and communities, promoting strong tribal-federal government-to-government policies, and promoting a better understanding among the general public regarding American Indian and Alaska Native governments, people and rights. For more information visit 

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