BIA announces final ICWA rule revisions

WASHINGTON – Citing a checkerboard enforcement record among state courts, the Bureau of Indian Affairs announced its final rule revisions Tuesday to the Indian Child Welfare Act.

Developed in consultation with the Department of Justice and the Department of Health and Human Services, the new rule will require all state courts to ask whether any child involved in a foster care, adoption or termination of parental rights case is an Indian child under the terms of ICWA.

Despite the original provisions in ICWA that were meant to keep Native children in their tribal communities, indigenous youth are still disproportionately represented in the foster care system. Nationwide, as of 2013, Native children are 2.5 times more prevalent in state-run foster care versus their presence in the general population.

“The final rule builds upon the work of tribes and states by clarifying the Indian Child Welfare Act’s requirements, promoting consistency in Indian child-placement proceedings and ensuring that regardless of the state court forum, children and their parents receive the same active efforts envisioned by Congress to maintain family and community,” Acting Assistant Secretary – Indian Affairs Lawrence Roberts said.

Other items specifically addressed in the revision include:

State courts are not allowed to consider a child’s blood quantum when determining placement or whether the child meets the definition of “Indian child” under ICWA.

Emergency placements must be for a maximum of 30 days and only made if a child is in imminent physical or emotional danger.

Parental requests for privacy do not alleviate any party from their legal obligation to check whether a child is subject to ICWA provisions.


Bonding or attachment stemming from a placement that was not made in compliance with ICWA does not count as sufficient grounds for a “good cause” exemption.

— The “Existing Family Doctrine,” a judicially created loophole, is stricken down. First drawn up by a Kansas court in the 1980s, the doctrine posits that whatever family a Native child is in automatically makes it a Native family and therefore should not be broken up.

Prompted in part by the 2013 Supreme Court ruling in Adoptive Couple vs. Baby Girl, the agency held five listening sessions, multiple tribal consultations, and a public teleconference call in 2015 to solicit feedback on the proposed changes, drawing more than 2,100 written comments.

“We received thousands of comments from the public during the rule making process ― more than three times the number of comments than any other rule we’ve published,” Roberts said. “An overwhelming number of those comments came from the tribes, so it’s clearly an issue of public interest. And we think this rule will help state agencies and courts in the application of the law and provide more consistency across the board.”

Scheduled to take effect in December, the full 367-page document is available online at http://www.indianaffairs.gov/cs/groups/public/documents/text/idc1-034238.pdf