A. Purpose and Background

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). At the time of the law's passage, Congressional testimony documented the significant impact that decades of family separation had on Native children, their families, and their Tribes. 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 non-custodial, biological 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[62] and a binding Final Rule to the regulations implementing ICWA (known as Final Rule or Regulations) to clarify Congressional intent. 81 FR 38864 (June 14, 2016) and codified at 25 CFR Part 23. 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 that 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 and 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.