The UPDATED BIA ICWA Guidelines

Updated Guidelines!

From the website here. Press release here.

The new Guidelines, not updated since 1979, look really good. For example, there are fifteen examples of active efforts, which are explicitly separated out from ASFA findings. There is some clear language around determining putative fathers. They clarified 1922’s emergency removal provisions. They took out the “advanced stage of the proceedings” exception for transfer to tribal court. And quoting now,

There is no exception to the application of ICWA based on the so-called “existing Indian family doctrine.”

Thank you to everyone for all of the work on this. This is huge.

Also, thanks to C.N. for the heads up.

2 thoughts on “The UPDATED BIA ICWA Guidelines

  1. Lloyd Guy April 23, 2015 / 4:27 pm

    I need some guidance. I am involved in a Colorado case on behalf of the tribe. We are trying to transfer to tribal court and the guardian ad litem is opposing us saying that since this is an existing case, the old ICWA guidelines applies. We filed our first motion to transfer after the new guidelines came out. The judge has given us until mid-May to brief the issue. Has anyone else run into this issue? If so, how was it resolved? If the old guidelines prevail, we will most likely lose because of the “advanced stage.”

  2. ilpc April 23, 2015 / 5:42 pm

    I don’t have a long answer for this, other than the Guidelines do state they are effective immediately. The Van Hunnik order examined both the old and new Guidelines. While the judge writes that he focuses on the Guidelines as they existed for much of the litigation, it’s pretty clear he gave the new Guidelines significant weight: https://turtletalk.files.wordpress.com/2015/03/16512126039.pdf

    In their recent amicus brief in the California Supreme Court, the United States argues the new Guidelines replace and supersede the old Guidelines, and while they brief both, they note the differences: https://turtletalk.files.wordpress.com/2015/04/indian_resources-93189-v1-final_signed_isaiah_w__brief_4_13_15.pdf

    -Kate

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