2016 BIA ICWA Guidelines Released

Here are the 2016 Guidelines. For those keeping track at home:

February 2015, Updated Guidelines replacing the 1979 Guidelines (No Longer in Effect)

June 2016, Federal Regulations released (Became Binding on December 12)

December 2016, Updated Guidelines replacing the February 2015 Guidelines

What this means:

25 USC 1901 et seq (ICWA) has not changed in 1978, and provides the minimum federal standards for Indian families. State ICWA laws (and corresponding court rules) that provide higher standards still apply. The federal Regulations are now binding and are like the federal law. The December 2016 Guidelines are now in effect and are non-binding interpretation of the Regulations (given the way they are drafted).


ICWA Case Updates and Legal Clarifications

Because of the recent media attention to ICWA, here’s a quick update and clarification of some legal details:

ICWA has not been amended, updated, or changed. Ever. The same language that Congress passed in 1978 is the same language in effect today.

In 2015 the Bureau of Indian Affairs updated the ICWA Guidelines for State Courts for the first time since 1979. These non-binding Guidelines are considered persuasive by many states and are in effect now. State courts are using them in their decisions. The National Council for Adoption (NCFA) and Building Arizona Families (BAF) challenged the implementation of the 2015 Guidelines in the Eastern District of Virginia (E.D.Va) where they lost a motion to dismiss. However, they have filed an appeal in the Fourth Circuit, which is where the case currently sits.

Also in 2015, the Department of the Interior proposed federal regulations. Those regulations went through an intensive comment period (you can still read all of those comments here). The regulations have not yet been promulgated, which means the federal government has not released them pursuant to the Administrative Procedures Act–which means they do not currently exist. No one knows when they will be promulgated, or what they look like at this point. People (including us) speculate on when or if they will be promulgated before the end of the Administration, but we do not know. We do anticipate (speculate) there will be litigation over the regulations if/when they are.

Finally, the Goldwater litigation, which attracted a big splash of media attention when the complaint was filed in 2015, is on-going. Their goal is to have a court find that ICWA is a race-based law, meaning that the law would be subject to strict scrutiny in the federal courts (you can read a Wall Street Journal op-ed by the Goldwater attorneys discussing this here, but only if you want to and you probably don’t). This, of course, completely disregards long settled federal and state law (1) regarding tribes, tribal people, political status, and citizenship, which NICWA addresses perfectly at the end of an article here (and you can now disregard the reporter’s claim that ICWA has been amended because you’ve read this post and know that’s wrong). Along those lines, the plaintiffs in the Goldwater case just tried to add two new named plaintiffs, one of whom is not eligible for membership in any tribe. This has led to recent filings by both the federal and state governments named in this case asking the judge to dismiss. Both filings explain in detail why ICWA is not a race-based law.

(1) See, e.g., In the Interest of A.B., 663 N.W.2d 625, 636 (N.D. 2003); In re A.A., 176 P.3d 237, 240 (Kan. App. 2008); In re Adoption of Hannah S., 48 Cal. Rptr. 3d 605, 610-11 (Cal. Ct. App., 3rd. Dist. 2006); In re Interest of Phoenix L., 708 N.W.2d 786, 797-89 (Neb. 2006), rev’d on other grounds; Matter of M.K., 964 P.2d 241, 244 (Okla. Ct. App. 1998); In re Marcus S., 638 A.2d 1158, 1159 (Maine 1994); State ex rel. Children’s Services Div. v. Graves, 848 P.2d 133, 134 (Or. Ct. App. 1993); In re Miller, 451 N.W.2d 576, 579 (Mich. App. 1990); Matter of Appeal in Pima County Juvenile Action No. S-903, 635 P.2d 187, 193 (Ariz. Ct. App. 1981); Matter of Guardianship of D.L.L., 291 N.W.2d 278, 281 (S.D. 1980).

Unpublished Decision from Alaska Declining to Apply 2015 ICWA Guidelines Provision on Expert Witnesses


Even before the holding, the Court brushes aside some pretty disturbing facts, including:

OCS noted that Casey might be affiliated with the Asa’carsamiut Tribe and that the children were believed to be Indian children affiliated with the Tribe. . . . In September the Tribe attempted to intervene. Because the Tribe’s documents were ambiguous about Casey’s tribal membership and the Tribe did not respond to the trial court’s request for clarification, in November the trial court denied the intervention motion without prejudice. At about the same time the trial court granted OCS’s motion to remove the children from Kent’s home.

In August 2013 OCS petitioned to terminate Kent’s and Casey’s parental rights, stating that the children were “not believed to be Indian children” and setting out the grounds for termination.  In its order terminating Kent’s parental rights, the trial court first stated that it had made findings at various stages of the case that the children were not Indian children under ICWA, that no party had presented contrary information at trial or asked the court to reconsider its earlier rulings, and that the children were not Indian children under ICWA.

On the Expert Witness issue:

When determining whether a witness satisfies ICWA’s “qualified expert witness” requirement, we have considered the Bureau of Indian Affairs(BIA) Guidelines for State Courts; Indian Child Custody Proceedings (1979 BIA Guidelines). . . . In February 2015 — after the termination trial in this case but before the remand — the BIA adopted Guidelines for State Courts and Agencies in Indian Child Custody Proceedings (2015 BIA Guidelines) to “supersede and replace the guidelines published in 1979.” Less than a month later the BIA published proposed new ICWA regulations to “complement [the] recently published Guidelines for State Courts and Agencies in Indian Child Custody Proceedings.” The proposed regulations have not yet been adopted.

OCS argues that “because the BIA is in the process of adopting ICWA regulations whose final content is unknown, it would be premature for this court to consider overturning Alaska law on ICWA experts before knowing what the BIA’s final word on qualified experts is.” We agree. Final regulations have not yet been adopted and we thus cannot determine whether they will include such a requirement in the future. We decline to overrule our longstanding precedent based on the possibility that BIA regulations will require a different result in the future.

ICWA Placement Preferences Case out of Oklahoma

A disturbing case that is also a prime example of why ICWA Regulations are needed in addition to the new Guidelines (submit comments by MAY 19!)

Opinion here.

The court reads a best interest determination into the good cause to deviate from placement preferences, and skates alarmingly close to the existing Indian family exception reasoning.

Information on Proposed Changes to the Minnesota ICWA Law

From the Center for Advanced Studies in Child Welfare:

It is apparent that the BIA guidelines on Indian child welfare proceedings overlap with current legislation in Minnesota, showing that efforts by the BIA and other advocates have likely been considered. The modifications to MIFPA and changes to out-of-home placement provisions are sensitive to tribal involvement, and the importance of heritage and culture in the lives of Indian children and families is clearly defined in the proposed purpose of MIFPA and other aspects of the new legislation. The bills fill gaps previously left unclear or undefined.

While the bills show much progress for Indian child welfare in Minnesota, there is one thing to consider. In terms of court placement of an Indian child outside of the placement preferences, both bills allow social services agencies to provide testimony that they have performed diligent efforts to follow the ICWA placement preferences. What is unclear is how the courts plan to measure the level of diligence and whether or not DHS would provide guidance over this.


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.

Unpublished Expert Witness Case out of Nebraska


In this case, the State called Patterson to testify that returning Eyllan to Nathaniel’s care was likely to result in serious emotional or physical damage to him. Patterson is currently employed as a school psychologist. Her educational background includes an education specialist degree and a bachelor’s degree in social work. Previous to her current employment position, she has worked as a social worker who specialized in and worked exclusively with Native American families. As a part of this employment, she provided expert testimony in NICWA cases, developed activities for children living outside of their tribe to maintain “cultural connectiveness,” and worked with tribes to facilitate enrollment of Indian children. In addition,Patterson has experience providing parental supervision, parenting education, and in-home counseling for Native American families. Patterson testified that she continues to have knowledge of “the prevailing social and cultural standard for rearing children within the Native American community.” She also indicated that she has experience with the Sioux Tribe, which is the tribe in which Eyllan is eligible for enrollment.

One side note–the Nebraska Court of Appeals only cites to the Nebraska ICWA rather than the federal ICWA (they do also cite to the BIA Guidelines via an NE Supreme Court case). Without reading through the whole statute, the state version does appear to essentially mirror the federal one. However, this week I had a conversation about how important it turned out to be for Michigan, specifically regarding investment in state education and state training on ICWA issues, to have a state ICWA law passed. Cases like this reinforce that belief.

Expert Witness ICWA Case Out of Alaska


Applying the correct meaning of the phrase “professional person having substantial education in the area of his or her specialty,” we hold that Cosolito and Kirchoff should have been qualified as experts under the third BIA guideline. As social workers, both were “professional persons.” Both had “substantial education in the area of [her] specialty”: master’s degrees in social work, internships in relevant subject areas as required for their degrees, agency training, and continuing professional education. The experience of both witnesses further demonstrated the required “expertise beyond the normal social worker qualifications.” Cosolito described her work as an OCS supervisor overseeing hundreds of cases, identifying safety threats, and having ultimate responsibility for custody decisions; as an OCS line worker assessing reports of harm; and as a school administrator and social worker in Arizona working with the diverse behavioral and education needs of students and their families. Her testimony demonstrated regular and in-depth exposure to the very types of family and behavioral issues that were central to Candace’s case, including the possibility that Candace would be assaulted again, be re-traumatized, and engage in more self-destructive behavior.

Kirchoff appeared even more amply qualified to testify about the risks of serious emotional or physical harm if Candace were returned to her home. Kirchoff had a lengthy work history as a mental health clinician, working with children with emotional and behavioral problems in a variety of institutional and agency settings, as well as a private practice of custody investigations and adoption home-studies. As Candace’s own clinician, treating her in both individual and group therapy, Kirchoff was uniquely qualified to testify with authority about Candace’s susceptibility to emotional harm.