New Federal Regulations may help Native American Families



Federal Register ICWA 2015 Regulation UpdateOn February 25, 2015, the Department Of The Interior through the Bureau Of Indian Affairs issued some important new guidelines for the administration of the Indian Child Welfare Act.1

The entry in the Federal Register begins by explaining that Congress determined that cultural ignorance and biases within the child welfare system were significant causes of the problems leading to the passage of the Indian Child Welfare Act, and that state administrative and judicial bodies “have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families.”

The new regualtions in the Federal Register explain that the 1979 ICWA guidelines included a commentary for each section, which was intended to explain the requirements of each section. The updated guidelines issued yesterday are clearer, making the commentary unnecessary. The entry explains:

Recognizing the important role that child welfare agencies play in ICWA compliance, these updated guidelines broaden the audience of the guidelines to include both State courts and any agency or other party seeking placement of an Indian child. The guidelines identify procedures to address circumstances in which a parent desires anonymity in a voluntary proceeding. Those procedures clarify that a parent’s desire for anonymity does not override the responsibility to comply with ICWA. The guidelines also establish that agencies and courts should document their efforts to comply with ICWA.

The specific changes to section A of the regulation:

  • Clarifies that agencies and State courts must ask, in every child custody proceeding, whether ICWA applies;
  • Clarifies that courts should follow ICWA procedures even when the Indian child is not removed from the home, in order to allow tribes to intervene as early as possible to assist in preventing a breakup of the family; and
  • Provides that, where agencies and State courts have reason to know that a child is an Indian child, they must treat that child as an Indian child unless and until it is determined that the child is not an Indian child.

The Federal Register explains that, “The updated guidelines expand upon the emergency procedure provisions in light of evidence that some States routinely rely upon emergency removals and placements in a manner that bypasses implementation of ICWA.”

US Amicus Brief ICWAAt this point, the entry in the Federal Register points to the Amicus Brief of the United States in Oglala Sioux Tribe v. Van Hunnik, which was filed in court on August 14, 2014.2

The Amicus Brief is summarized in the Federal Register. Among the allegations set forth by the United States:

(1) Defendants are conducting perfunctory 48-hour hearings that do not adequately gather or evaluate information necessary to determine whether emergency removals or placements should be terminated, and that the orders issued at the end of the 48-hour hearing do not adequately instruct State officials to return the child to the home as soon as the emergency has ended;

(2) Defendants are violating the Due Process Clause by preventing parents from testifying, presenting evidence, or cross-examining the State’s witnesses at the 48-hour hearing; and

(3) parents are not being provided adequate notice or the opportunity to be represented by appointed counsel and that the State courts are issuing orders to remove Indian children from their homes without basing those orders on evidence adduced in the hearing).

The regulations address some issues that are central to the crisis.

Due Process

As described above, the new regulations discuss due process concerns that have long been raised by child and family advocates. Indeed, the Amicus Brief submitted by the United States from which the new regulations are drawn itself candidly admits:

The Due Process Clause requires that parents be given notice of the claims against them and an opportunity to challenge the state’s allegations by presenting evidence and cross-examining witnesses. Otherwise, parents are denied a prompt, meaningful opportunity to challenge whether the emergency removal was proper in the first place or to demonstrate that conditions have changed so that the child can be safely and appropriately returned to the parents’ custody.

The new provisions also restrict some timelines, and endeavor to create some sensible removal standards to the potential benefit of Native American families.

As the result of these revelations, section B of the new regulation, “explicitly states the standard for determining whether emergency removal or emergency placement is appropriate- i.e., whether it is necessary to prevent imminent physical damage or harm to the child—and provides examples. The guidelines clearly state that the emergency removal/placement must be as short as possible, and provides guidance on how to ensure it is as short as possible. It also shortens the time period for temporary custody without a hearing or extraordinary circumstances from 90 days to 30 days. This shortened timeframe promotes ICWA’s important goal of preventing the breakup of Indian families.”

Best Interests Determinations

The new regulations specifically address the so-called “best interests” determination made by courts, explaining,

The updated guidelines also specify that it is inappropriate to conduct an independent analysis, inconsistent with ICWA’s placement preferences, of the “best interest” of an Indian child. The provisions of ICWA create a presumption that ICWA’s placement preferences are in the best interests of Indian children; therefore, an independent analysis of “best interest” would undermine Congress’s findings.

Expert Witnesses

The updated section D of the regulation “provides guidance regarding how to identify an appropriate ‘qualified expert witness.’ Commenters indicated that some States rely on witnesses’ qualifications as child care specialists, or on other areas of expertise, but do not require any expert knowledge related to the tribal community. The updated guidelines establish a preferential order for witnesses who are experts in the culture and customs of the Indian child’s tribe. This will ensure that the expert witness with the most knowledge of the Indian child’s tribe is given priority.”

It took a very long time for the United States to recognize three crucial points. In the oft-cited book edited by Steven Unger of the Association on American Indian Affairs published in 1977, “The Destruction of American Indian Families,” the use of “expert witnesses” and other practices relating to termination of parental rights were reviewed at some length:

The case planning for Indian children is biased from the beginning. Workers tend to place Indian children in non-Indian substitute homes where there is the likelihood that they can remain a long time either through permanent foster care or adoption. This becomes an important factor in the department’s case. It can demonstrate that a permanent, loving, caring home has already been found, and also claim that removal of this child to the questionable home of his Indian parents or relatives would inflict severe, longlasting and traumatic damage to the child. Experts are brought in to testify to the traumatic effects of separation and placement. Parents unwittingly submit themselves to psychiatric or psychological testing paid for by the department to prove that they are unfit, troubled people and parents. The referrals to these psychological experts are made by the department workers who in their letters of referral painstakingly list the parents’ failures. No mention is made of strengths.

And the parents’ rights are terminated.3

GAO ICWA Report 2015On the very same date that the revised Federal Regulations were published, the Government Accounting Office issued a new report on the ICWA. Reduced to its esssence, the problem is much the same is it was when the ICWA was originally enacted. As the GAO report explains it, “Indian children enter foster care at twice the rate of all American children.”4

The GAO report is based in part on interviews with officials of some tribes, federal agencies, and child welfare experts. One of the key findings of the report is that “7 of these 11 tribal officials reported that incorporating termination of parental rights—which severs the legal parent-child relationship in certain circumstances—into their tribal codes was challenging because it conflicts with their cultural values.”

This exactly where the problem lies. The Title IV-E funds that are being dangled like a carrot by the Department of Health and Human Services to entice tribes to participate in federally-administered child welfare programs comes at a very high price. As the GAO report issued yesterday explains:

HHS recognizes that termination of parental rights may not be part of an Indian tribe’s traditional beliefs; however according to the agency it lacks the statutory authority to provide a general exemption for tribal children from the requirement.

The heart of the problem is that child protection agencies are not rewarded for helping families. They are, however, rewarded handsomely for tearing families asunder. They are encouraged, and fiscally rewarded, for increasing the number of – and haste with which – terminations of parental rights occur. This is nothing new. A report concerning states’ compliance with the ICWA issued by the GAO in 2005 explains,

One key provision of the law requires states, with some exceptions, to file a petition to terminate parental rights for children who have been in foster care for 15 of the most recent 22 months—a requirement that could conflict with the belief expressed by many tribes that a parent’s relationship with a child can never be severed.5

For states and tribes, compliance with that particular law is tied to the flow of federal funds, regardless of whether they are funneled in directly through Title IV-E, or through the Bureau of Indian Affairs.5

Just how that law came about is worthy of brief discussion.

Even as states struggled with compliance with the ICWA, as well as the reasonable efforts requirements of Public Law 96-272, the disparity between the number of children in foster care who needed permanent homes and the number who were adopted spurred former President Clinton in 1996 to ask for new legislation aimed at doubling the number of adoptions by 2002. This, Clinton said, was intended to provide foster children with “what should be their fundamental right-a chance at a decent, safe home.”7

In response, Congress passed the Adoption and Safe Families Act in November of 1997. The Act provides very narrow and specific timeframes for terminations of parental rights, it and provides fiscal rewards to states for terminating parental rights.8

All that the child welfare agencies have to do is what they have done along; drag their feet when it comes to returning children to their homes, and wait for the clock to run out on their half-hearted reunification efforts to terminate and claim their rewards.9

One other aspect of current federal financing schemes is that child welfare agencies compete fiercely for their slice of the proverbial pie. As 2015 GAO report explains it:

Multiple agencies, both tribal and non-tribal, can provide child protection and child welfare services for Indian children at the same time. An Indian child could be the alleged victim of abuse or neglect reported under any state, tribal, or federal reporting procedures. Consequently, the agency that receives and potentially responds to a report of child maltreatment involving an Indian child depends on a range of factors, including where the child is living, the nature of the allegation, and the specific state, tribal, or federal agreements or resources in place to investigate and serve the child and family. For example, through a memorandum of understanding or other agreement, tribes may collaborate with state workers to respond to allegations of maltreatment and provide case management services. In some cases, BIA social workers may provide protective and other services.

It merits mention that many tribes feel that they have been historically ill-served by the Bureau of Indian Affairs. Indeed, it was that same agency that entered into a fiscal arrangement with the Child Welfare League of America to promote the removal of Native Americcan children from their homes, and to provide them with adoptive placements through the creation of the Indian Adoption Project, which may fairly be credited as being the genesis of the crisis that led to the creation of the ICWA.

“The national Indian Adoption Project of 1958-1968 represents the second generation of child removal and assimilationist welfare policy,” explains Lila George in the industry journal Multicultural Social Work.

Citing government documents, George explains that in 1957, the BIA “contracted with the Child Welfare League of America to operate a clearinghouse for the interstate placement of Indian children with non-indian families.”

This contract was necessary because the BIA lacked the authority to engage directly in adoption. As intentioned by Congress, the BIA was to act in the best interest of tribes, hence a direct role in the out-of-culture adoptions would have readily been identified as being a violation of that obligation. Thus was born the Indian Adoption Project, which George describes as “a fiscal collaboration between the Bureau of Indian Affairs and the Child Welfare League of America.”10

In the final analysis, what is crystal clear from a close reading of both the Federal Register and the GAO report is that federal financial incentives dictating the removal of children from their homes and the termination of parental rights as prerequisites for federal financial aid are at odds with one another.

Until these conflicting mandates are reconciled, precious few meanigful changes are likely to be ensue.

1. Department of the Interior, Bureau of Indian Affairs. K00103 12/13 A3A10; 134D0102DR–DS5A300000–DR.5A311.IA000113. Guidelines for State Courts and Agencies in Indian Child Custody Proceedings. Federal Register. Vol. 80, No. 37. 10146. February 25, 2015.

2. Amicus Brief of the United States. Oglala Sioux Tribe v. Van Hunnik. Case No. 5:13-cv-05020-JLV. US District Court, SD WD. As filed August 14, 2014.

3. Unger, S. 1977. The destruction of American Indian families. New York, NY: Association on American Indian Affairs.

4. US Government Accountability Office. 2015. Foster Care: HHS Needs to Improve the Consistency and Timeliness of Assistance to Tribes. GAO-15-273. Publicly released February 25, 2015.

5. US Government Accountability Office. 2005. Indian Child Welfare Act: Existing Information on Implementation Issues Could Be Used to Target Guidance and Assistance to States. GAO-05-290. (Discussing the implications of the Adoption and Safe Families Act on tribes, while noting that over half of the states failed to address any of the required planning measures required by the ICWA, and that “4 states did not address ICWA at all”).

6. Id. The current GAO report explains that tribes “have direct access to some of the federal resources used by states to finance child welfare programs under programs administered by HHS. In addition, there are federal funding streams unique to tribes that are administered by BIA.”

7. Spake, A. (1998, June 22). Adoption gridlock: Barriers still hold back too many kids. U.S. News and World Reports.

8. See generally the article Rewarding States for Adoptions Part of the Problem, Rather Than a Solution for a discussion of the federal fiscal rewards provided to states for increasing adoptions. See also Indian Child Welfare Act: Still Under Siege for a discussion regarding the disproportionate number of Native children in care.

9. Child welfare agencies are notorious for their delay in returning children to their homes. The Congressional testimony of Marcia Robinson Lowry, who took a 12-year-old child with her to testify as to his personal experience in foster care, tells the story most eloquently. Lowry explained that notwithstanding that there had been no allegations of abuse, it took the mother almost 5 years to get her children reunited. “Reasonable efforts were not made in this case and reasonable efforts are not made in hundreds and hundreds of thousands of cases across the country,” she explained.

10. George, L. 1997. Why the Need for the Indian Child Welfare Act? Journal of Multicultural Social Work. 165.