On March 20, 2015, The Bureau of Indian Affairs (BIA) published draft regulations to improve implementation of the Indian Child Welfare Act (ICWA) by state courts and child welfare agencies. Included in the notice is a listing of public meetings and separate tribal consultation sessions on the proposed regulations. Comments are due May 19, 2015.
In addition, the Departments of Interior and Health and Human Services (HHS) and the Department of Justice (DOJ) announced in a joint letter of March 23, 2015, that they will hold a listening session on April 21 regarding ICWA implementation and compliance issues affecting tribes.
The BIA proposed regulations may be found here: http://www.gpo.gov/fdsys/pkg/FR-2015-03-20/pdf/2015-06371.pdf. We also attach copies of the proposed regulations and the Interior/HHS/DOJ letter.
The proposed regulations are distinct from the BIA guidance issued on February 25, 2015, concerning state court and child welfare agency implementation of ICWA. (See our General Memorandum 15-022 of March 12, 2015). The BIA subsequently issued proposed regulations, citing the view of many that ICWA compliance will be more effective if governed by enforceable rules rather than guidance. Also of relevance to the upcoming meetings is the Department of Justice’s ICWA initiative announced in December 2014 that they will work in partnership with HHS to promote compliance with ICWA. (See our General Memorandum 14-093 of December 5, 2014).
The proposed regulations cover many of the same issues addressed in the guidance: the extension of ICWA regulations beyond state courts to include child welfare agencies; detailed instructions on what may constitute “active efforts” in implementing ICWA; limitations on what constitutes “good cause” for not following transfer of jurisdiction and placement preferences; limitations on emergency removals and emergency placements of Indian children; and expansion of efforts to assist adult Indian adoptees in establishing tribal membership. Also of significance is that the proposed regulations provide that “there is no exception to application of ICWA based on the so-called ‘existing Indian family doctrine'” and include a “non-exhaustive” list of factors that have been used by courts in applying the existing Indian family doctrine that may not be considered in determining whether ICWA is applicable.
The BIA asks commenters to analyze the draft regulations’ use of the term that an action “must” be taken because it is authorized by ICWA versus proposed provisions which provide that certain actions “should” be taken.
The first three sessions are being held in conjunction with the National Indian Child Welfare Association (NICWA) conference in Portland, Oregon (see the attached notice for more detail):
• April 20 Interior tribal consultation (Hilton Portland and Executive Towers), 3:30-5:30 pm Local Time
• April 21 Interior/HHS/DOJ listening session (Hilton Portland and Executive Towers), 1:30-3 pm Local Time
• April 22 Public meeting (BIA Regional Office in Portland), 9 am-noon Local Time
Other Tribal Consultation Sessions:
• April 23 Rapid City, SD 9 am-noon Local Time
• May 5 Albuquerque, NM 9 am-noon Local Time
• May 7 Prior Lake, MN 9 am-noon Local Time
• May 11 Via teleconference 1-4 pm Eastern Time
• May 14 Tulsa, OK 9 am-noon Local Time
Other Public Meetings:
• April 23 Rapid City, SD 1-4 pm Local Time
• May 5 Albuquerque, NM 1-4 pm Local Time
• May 7 Prior Lake, MN 1-4 pm Local Time
• May 12 Via teleconference 1-4 pm Eastern Time
• May 14 Tulsa, OK 1-4 pm Local Time
Please let us know if we may provide additional information or assistance regarding the Bureau of Indian Affairs proposed regulations for the Indian Child Welfare Act or related matters.
