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Advocates Cheer New Indian Child Welfare Act Regulation

Nicole Knight

The first comprehensive update issued since ICWA's implementation in 1978, it requires state courts to ask all participants in child custody proceedings whether a child is an “Indian child," legally defined as being a member of, or eligible for membership in, a federally recognized tribe.

A new federal rule issued this month under the Indian Children Welfare Act could keep more Native children in tribal communities, advocates say.

The new regulation requires state child custody proceedings to more consistently apply the federal Indian Child Welfare Act (ICWA) by imposing several new standards. The first comprehensive update issued since ICWA’s implementation in 1978, it requires state courts to ask all participants in child custody proceedings whether a child is an “Indian child,” legally defined as being a member of, or eligible for membership in, a federally recognized tribe.

The regulation, issued by the Bureau of Indian Affairs and set to go into effect in December, also clarifies when child custody cases can be transferred to tribal courts, and requires parents and the tribe to be notified when a family is involuntarily relinquishing a child, among other key provisions.

Prior to ICWA’s enactment, an estimated 25 to 35 percent of Native children had been separated from their families in what congressional testimony at the time described as an “Indian child welfare crisis of massive proportions.”

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Dr. Sarah Kastelic, executive director of the National Indian Child Welfare Association (NICWA), called the new federal rule a “historic step” in a “child welfare system [that] still falls short for our Native children.” Native children, according to Kastelic, are four times as likely as white children to be removed from their homes on their first encounter with the courts, even under identical circumstances.

American Indian and Alaskan Native children are overrepresented in the country’s foster care system at more than 1.6 times the expected level, according to a 2007 report by NICWA and the Kids Are Waiting campaign, a project of The Pew Charitable Trusts. In Alaska, for example, Native children make up 20 percent of the population, but account for about 51 percent of children in foster care, the report noted.

Proponents of the regulation point to the complex and much-publicized case of Baby Veronica. A 2013 U.S. Supreme Court decision required Cherokee Nation member Dusten Brown to turn over his biological daughter, Veronica, to a white South Carolina couple who had raised her the first two years of her life, as Rewire reported.

Critics, meanwhile, argue that ICWA’s provisions leave children to languish in foster care longer than non-Indian children.

Timothy Sandefur, vice president for litigation with the Goldwater Institute, an Arizona-based libertarian public policy organization that has ICWA-related lawsuits pending in state and federal court, said the law’s provisions ignore the “best interests of the child.”

Sandefur said he’d ultimately like the U.S. Supreme Court to find ICWA unconstitutional.

“This is a matter of racial discrimination, because this law creates a separate and unequal system for Indian children,” Sandefur said in a phone interview with Rewire.

A 2005 report by the U.S. General Accounting Office analyzing foster care in four states found “no consistent pattern” between the length of time children covered under the ICWA remain in foster care compared to children who are not.

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