For the first time since 1979, the Bureau of Indian Affairs (BIA) updated its Indian Child Welfare Act (ICWA) guidelines. This is a strong step forward, making important improvements with ICWA compliance and in the lives of native children and families involved in foster care. The BIA is also working to implement many of these new guidelines as enforceable federal regulations.
Upon the release of the new guidelines, the BIA stated, “[m]uch has changed in the 35 years since the original guidelines were published but many of the problems that led to the enactment of the ICWA persist.” Some of these challenges are addressed with the following clarifications:
- Active Efforts – The new BIA guidelines provide additional clarity for attorneys by listing the active efforts that should be used with the intention of maintaining or reuniting native children with family or their tribal community. These active efforts include keeping siblings together, consulting with extended family members to assure cultural connections, and supporting regular visitation for native families.
- Qualified Expert Witnesses – The updated guidelines confirm that a Qualified Expert Witness should have specific knowledge of the child’s tribe, culture and customs when testifying in an ICWA case. The BIA guidelines include a list of prioritized individuals with the most knowledge of the native child’s tribal culture.
- ICWA Applies in Voluntary Cases – The updated ICWA guidelines clarify that ICWA must be applied in voluntary, or non-court involved, cases as soon as possible. States must determine if a child is native, tribes must be notified and allowed to participate in the case, and active efforts must still be provided.
The proposed BIA regulations, if accepted, would improve compliance with the ICWA in Nebraska. The BIA will be holding a number of public hearings throughout April and May in South Dakota, Oregon, New Mexico, Minnesota and Oklahoma to determine how best to promulgate or amend these regulations.
To further address the disproportionate number of native children and families involved in the child welfare system, the Nebraska Legislature has also given first round approval to LB 566. LB 566 will strengthen ICWA compliance and maintain ties of culture and tradition for Nebraska’s native children and families involved in foster care.