Proposing a Resolution: Why the 2015 Proposed ICWA Regulations Are Necessary for ICWA to Fulfill Its Purpose
Columbia Journal of Law and Social Problems, Forthcoming
31 Pages Posted: 5 Jun 2016
Date Written: March 3, 2016
Congress passed the Indian Child Welfare Act (ICWA) in 1978 in response to the high number of Indian children being removed from their homes and placed with non-Indian families. These removals were oftentimes unwarranted and were motivated by nothing more than the pervasive cultural ignorance and biases of state agencies. The purpose of ICWA was to “protect the best interests of Indian children...by establishing minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes or institutions which will reflect the unique values of Indian culture.” Shortly after passing ICWA the BIA published a set of non-binding guidelines. The purpose of these guidelines was to provide states with the BIA’s interpretation of the ICWA’s requirements and to aid states in ICWA proceedings. Today, thirty-eight years after Congress passed ICWA, the Indian child welfare crisis still exists. The Federal government acknowledged this issue in 2014 when the BIA invited comments to determine whether to update the ICWA’s non-binding guidelines. The overwhelming response to this invitation was that the guidelines not only needed to be updated but the BIA also needed to issue legally binding ICWA regulations to ensure states complied with the statute. In February 2015 the BIA published a new set of guidelines in order to further clarify ICWA and address areas of consistent non-compliance that hindered the Act’s ability to fulfill it’s purpose. Additionally, in March 2015 the BIA announced its intent to propose a series of legally binding federal regulations to govern ICWA cases in state courts. This note will analyze the proposed regulations and will suggest that requiring states to respect tribal sovereignty is the only for ICWA’s purpose to be fulfilled.
Keywords: ICWA, 2015, regulations
Suggested Citation: Suggested Citation