Introduction
Please see Checklist Section for ICWA Checklist.
Important Note
On October 4, 2018, the U.S. District Court for the Northern District of Texas issued its opinion in Brackeen v. Zinke, 338 F.Supp.3d 514 (2018), declaring unconstitutional most of the Indian Child Welfare Act and its 2016 implementing regulations, also known as the Final Rule.
On August 9, 2019, the a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit filed an opinion in Brackeen v. Bernhardt (formerly Brackeen v. Zinke, 2019 U.S. App. LEXIS 23839 (5th Cir. Tex., Aug. 9, 2019) reversing the district court's ruling and upheld the Indian Child Welfare Act and Final Rule as constitutional. On November 7, 2019, the full Fifth Circuit vacated the August 9 decision for an en banc review and heard oral arguments on January 22, 2020.
As of the date of publication, all sections of the Indian Child Welfare Act and Final Rule are in effect and should be followed.
This chapter is excerpted from the DFPS Attorney Manual with permission of DFPS.
The Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C. §§ 1901 – 1963; 25 C.F.R. Part 23, is a federal law that imposes special standards and requirements when a child welfare agency seeks to intervene to protect an “Indian child,” as defined by statute 25 U.S.C. § 1903(4). The law was enacted to protect not only Indian children, but their families and tribes. 25 U.S.C. § 1902.
In 2013, the United States Supreme Court interpreted ICWA narrowly, restricting the rights of a parent who has never had custody of an Indian child and limiting the circumstances when the placement preferences apply in Adoptive Couple v. Baby Girl, 133 S.Ct. 2552 (2013).
In response, the Department of the Interior, Bureau of Indian Affairs (BIA) issued updated guidelines in February 2015 and a binding final rule to the regulations implementing ICWA (Final Rule or Regulations). 81 FR 38864 (June 14, 2016) and codified at 25 CFR Part 23. The final rule reflects public comment and carries forward the “gold standard” in child welfare best practices. Effective in December 2016, the final rule:
• Clarifies terms used in the statute such as what actions are necessary to prevent the breakup of an Indian family using the rule's definition of "active efforts";
• Provides definitive signposts for ICWA compliance;
• Allows for notice of involuntary proceedings by certified mail, return receipt requested, as a less costly alternative to registered mail, return receipt requested;
• Provides flexibility to allow local procedures for emergency removal and placement, as long as ICWA's statutory standard for emergency removal and placement is met, is as short as possible;
• Continues to allow for consideration of each child's unique circumstances, but establishes some parameters to ensure that ICWA's purposes are not frustrated;
• Ensures states have the flexibility to determine the best way to maintain their records and no longer requires the proposal for maintaining all Indian child custody records in a single location;
• Leaves intact a parent's prerogative to choose an adoptive family for their child in voluntary proceedings; the rule requires that the parents review families who meet the placement preferences before making a final decision; and
• Protects confidentiality of the parties in all child custody proceedings, requiring the BIA, states, and tribes to keep information confidential.
In December 2016, the BIA issued another edition of updated Guidelines for Implementing the Indian Child Welfare Act (Guidelines)[59]. The Guidelines are not legislative and are thus not binding, but Texas courts have relied on the Guidelines in interpreting ICWA. In re V.L.R., 507 S.W.3d 788 (Tex. App. — El Paso, Nov. 18, 2015). The Guidelines state that “these guidelines explain the statue and regulations and also provide example of best practices.”