Solicitor’s Opinion on the New ICWA Regulation

US DOI Solicitor Opinion on the implementation of ICWA through legislative rule:

Congress understood that these issues went beyond reservations and significantly impacted Indian children who lived off reservations as well. Congress noted that there were approximately 35,000 Indian children in foster care, adoptive homes, or institutions whose families did not “live on or near reservations”52 and yet who were subject to the same problematic State child custody proceedings. In the AIPRC Final Report, which was included as part of the Senate Report on ICWA, the Commission recommended that any final legislation address the fact that because “[m]any Indian families move back and forth from a reservation dwelling to border communities or even to distant communities, depending on employment and educational opportunities,” problems could arise when Tribal and State courts offered competing child custody determinations, and that legislation therefore had to address situations where “an Indian child is not domiciled on a reservation and [is] subject to the jurisdiction of non-Indian authorities. ”  Congress accordingly fashioned ICWA to address the removal of Indian children, as defined in the statute, regardless of where their families were located.

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