What it is.
ICWA is a federal law passed in 1978 which was intended to prevent abusive child welfare practices which resulted in the removal of Indian children from the tribal community through foster care and adoption resulting in placement with a non-Indian family.
Unfortunately, no real efforts were undertaken to correct the underlying problems with rampant alcoholism, crushing poverty, and child abuse that were so prevalent in tribal communities then and that persist today.
Regulations & Guidelines
Decades ago, the Bureau of Indian Affairs developed guidelines. Over time the state courts developed a body of decisions around the regulations and those guidelines over the past 37 years.
In general guidelines are good. They promote uniformity and predictability Guidelines are not the same as regulations which are law. Guidelines are just advisory. Child custody decisions are made by district court judges. Judges are busy and unfortunately guidelines are often treated as law.
The BIA recently published new guidelines and new proposed regulations http://www.regulations.gov/#!docketDetail;D=BIA-2015-0001. The new guidelines actually conflict with the existing law that has develop over the course of the past 37 years. The proposed new guidelines are harmful for children. The changes only benefit the tribes and do so at the expense of children and parent’s rights. https://adoptionart.org/wp-content/uploads/2018/04/2016-ICWA-Regs-in-Federal-Register.pdf
The new guidelines are a blatant challenge to the 2013 US Supreme Court decision in what came to be known as the Baby Veronica case. Justice Alito began the opinion of the Court with this sentence “This case is about a little girl (Baby Girl) who is classified as an Indian because she is 1.2% (3/256) Cherokee.”
Because of that tenuous connection, the Court observed that Baby Veronica was “taken, at the age of 27 months, from the only parents she had ever known and handed over to her biological father, who had attempted to relinquish his parental rights and who had no prior contact with the child.” because of his tribal affiliation.
The US Supreme Court reversed the decision of the South Carolina Supreme Court and cleared the way for Baby Veronica to be reunited with her adoptive parents. The Court held “In sum, when, as here, the adoption of an Indian child is voluntarily and lawfully initiated by a non-Indian parent with sole custodial rights, the ICWA’s primary goal of preventing the unwarranted removal of Indian children and the dissolution of Indian families is not implicated.”
Why should I care?
In response, the Bureau of Indian Affairs has undertaken to re-write the guidelines and de facto change the law.
- The proposed changes ignore the needs of the child;
- The proposed changes ignore the right of a biological parents to make decisions about their child’s welfare; and
- The BIA has circumvented the democratic process to implement its agenda by force.
The best interest of the child is always supposed to be the focus of any custody proceeding. The new guidelines expressly direct the courts to disregard the best interest of the child. Trying to maintain tenuous tribal connections often harms the child by separating the only family that they know – the family that is raising them. https://www.fox23.com/news/local/group-wants-adoption-law-enforced_nmgbp/66959772/
Parents have a constitutional right to make decisions about the custody and welfare of their children. The proposed regulations tell courts that the interests of the tribe are superior to their rights as parents. The tribe has the right to make custody decisions for their children.
The Bureau has held sham public hearings to satisfy the letter of the requirement for public comment. In fact, there has not been a single public hearing conducted by the BIA east of the Mississippi River nor a single hearing in any of the twenty most populous states in our country. Those are the states where most of the Indian children are in foster care.
The Bureau has undertaken this agenda in an underhanded manner. In America we do not make laws in secret. Our forefathers died to secure the right to representative government. Citizens have the right to comment on proposed federal rules and laws before they become law.
That alone should be enough reason to care. If the BIA can create law in that manner, so can any other governmental department. The BIA has been sued over the new guidelines and regulations. http://www.nationallawjournal.com/home/id=1202727560257/New-Challenge-to-Native-American-Adoption-Rules?slreturn=20150427174843 ; https://s3.amazonaws.com/s3.documentcloud.org/documents/2089130/complaintbia-20150527.pdf
The Bureau’s efforts, and our tax dollars, would be better spent on programs to address the persistent problems with alcoholism, poverty, and child abuse that continue to plague tribal communities.