November 28, 2022

Volume XII, Number 332


Department of the Interior Issues Indian Child Welfare Act Regulations

Congress enacted the Indian Child Welfare Act (ICWA) in 1978 to address the long history of state child welfare agencies removing Indian children from their families and tribal communities unnecessarily and often based on culturally uninformed conclusions regarding the ability of extended Indian families to care for their children. The Act includes Congress’ declaration that “it is the policy of the United States to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family service programs.

The Department of the Interior (DOI) issued narrow regulations in 1979 and again in 1994 but declined to issue substantive regulations binding on state and tribal courts, concluding that it lacked authority. Instead, the DOI issued “guidelines,” which state courts were free to follow or ignore. The result has been the adoption of widely disparate and inconsistent interpretations of the ICWA by state courts and the invention by some states of limitations, such as the “existing Indian family” doctrine, that have no textual basis in the ICWA. 

On June 14, 2016, the DOI reconsidered its earlier position and concluded that it could, and should, issue final regulations binding on state courts interpreting the ICWA. The DOI’s executive summary identifies the principal features of the regulations: 

  • Applicability. The final rule clarifies when ICWA applies, while making clear that there is no exception to applicability based on certain factors used by a minority of courts in defining and applying the so-called ‘‘existing Indian family,’’ or EIF, exception.

  • Initial inquiry. The final rule clarifies the steps involved in conducting a thorough inquiry at the beginning of child-custody proceedings as to whether the child is an ‘‘Indian child’’ subject to the Act.

  • Emergency proceedings. Recognizing that emergency removal and placements are sometimes required to protect an Indian child’s safety and welfare, the final rule clarifies the distinction between the requirements for emergency proceedings and other child-custody proceedings involving Indian children and includes provisions that help to ensure that emergency removal and placements are as short as possible, and that, when necessary, proceedings subject to the full suite of ICWA protections are promptly initiated.

  • Notice. The final rule describes uniform requirements for prompt notice to parents and tribes in involuntary proceedings to facilitate compliance with statutory requirements.

  • Transfer. The final rule clarifies the requirement that a state court determine whether the state or tribe has jurisdiction and, where jurisdiction is concurrent, establishes standards to guide the determination whether good cause exists to deny transfer (including factors that cannot properly be considered) and addresses transfer of proceedings to tribal court.

  • Qualified expert witnesses. The final rule provides interpretation of the term ‘‘qualified expert witness.’’

  • Placement preferences. The final rule clarifies when and what placement preferences apply in foster care, pre-adoptive and adoptive placements, provides presumptive standards for what may constitute good cause to depart from the placement preferences, and prohibits courts from considering certain factors as the basis for departure from placement preferences.

  • Voluntary proceedings. The final rule clarifies certain aspects of ICWA’s applicability to voluntary proceedings, including addressing the need to determine whether a child is an ‘‘Indian child’’ in voluntary proceedings and specifying the requirements for obtaining consent.

  • Information, recordkeeping, and other rights. The final rule addresses the rights of adult adoptees to information and sets out what records states and the Secretary must maintain.

See 81 Fed. Reg. 38779-80.

Copyright © 2022 Godfrey & Kahn S.C.National Law Review, Volume VI, Number 195

About this Author

Brian Pierson Tribal Lawyer Godfrey Kahn Law Firm

Brian Pierson leads Godfrey & Kahn's Indian Nations Law Team. Brian clerked for federal district judge Myron L. Gordon before entering private practice. Brian has more than 20 years experience representing Indian tribes, beginning with his successful representation of Chippewa Indians in federal court litigation to prevent racially-motivated interference with treaty-reserved, off-reservation fishing rights.

As leader of the firm's Indian Nations team, Brian's primary objective is to draw on the knowledge and experience of G&K's attorneys to assist tribes in formulating and...