"Consistent with the direction of the President in creating the White House Council on Native American Affairs, we are taking an ‘all-of-government’ approach to ICWA.”

BIA Releases New ICWA Guidelines to Protect Native Families and Children

Suzette Brewer

On Tuesday, Assistant Secretary – Indian Affairs Kevin K. Washburn announced that the Bureau of Indian Affairs has published revised, sweeping new guidelines to ensure the rights and protections of Native families and children under the Indian Child Welfare Act (ICWA). In remarks at the winter session of the National Congress of American Indians, Washburn said that updating Guidelines for State Courts and Agencies in Indian Child Custody Proceedings in the Federal Register had become necessary due to the continued misapplication and noncompliance of ICWA in state and federal courts since it was first published in 1979.

Working in collaboration with other government agencies to press for the full implementation of the federal law, Washburn confirmed that the BIA is redoubling its efforts to prevent the break-up of Indian families and the further destruction of tribal communities.

"Consistent with the direction of the President in creating the White House Council on Native American Affairs, we are taking an ‘all-of-government’ approach to ICWA,” Washburn told Indian Country Today Media Network. “Recently, the Department of Justice advised tribes that it wishes to be notified of cases in state courts to consider participating in by filing amicus briefs in support of ICWA. Both the Department of the Interior and Department of Justice have been meeting with the Administration for Children and Families at Health and Human Services to consider ways in which their programs, such as the IV-E funding program, can be used to help insure ICWA compliance in states as well as strengthen tribal capacity in child welfare. We are developing strategies to work together to protect Indian children.”

In his remarks, Washburn referred to Adoptive Couple v Baby Girl (the Baby Veronica case) and ongoing ICWA violations in South Dakota as crucial turning points that prompted the tribes and government agencies to find a better way to reinforce the federal statutes, which were enacted in 1978 due to a high percentage of the removals of Native children from their families, many of whom wound up in non-Indian homes hundreds of miles away from their communities.

In June 2013, when the Supreme Court rendered its decision in Baby Veronica, Washburn said tribal leaders across the country began looking for better ways to implement and enforce federal laws designed to protect one of the country’s smallest minorities. “We decided that we needed to do something. We cannot reverse the Supreme Court [decision], but realized that we had some options available.”

Subsequently, in 2014 the BIA held five listening sessions across the country—three with tribes and two with judicial organizations—to assess the situation and gather comments on how to address ongoing ICWA violations in foster care and adoptions across the country.

South Dakota, in particular, has been a concern to the BIA and other federal agencies for years. In spite of the provisions in ICWA, nearly 750 Indian children annually have continued to be swept into state custody and placed in non-Indian foster homes at a ratio of 11:1 to their peers. Additionally, Indian children comprise approximately 53 percent of the total number of children in foster care, even though they only make up nine percent of the total child population of South Dakota. The state department of social services, the judges in the seventh circuit and the state’s attorney are currently facing an historic class action suit, Oglala v. Van Hunnik, in federal court over numerous procedural and civil rights violations under ICWA.

“The result was a lot of broken hearts,” said Washburn. “And it was not just the parents, grandparents and communities—it was the kids too. As adults, these kids struggle with having been uprooted and they have higher rates of depression and suicide than other kids.”

Immediately after the announcement, tribes and Indian child welfare advocates across the country applauded the new direction by the government in enforcing the original intent and purpose of ICWA.

“The Lakota People’s Law Project (LPLP) is heartened by the release of updated ICWA guidelines, given the fact that the state of South Dakota has been willfully and flagrantly violating this important federal law for at least the past 30 years,” said LPLP attorney Chase Iron Eyes in a statement to ICTMN. “During a decade of working on ICWA-related issues, the Lakota People’s Law Project revealed the deep-seated problems of continual and widespread ICWA violations and we think this will provide clarity on many important areas of ICWA’s application. We want to thank the Administration for their hard work and dedication to Native children and families. It is our hope that this is just one of many efforts to strengthen ICWA implementation in the next couple of years.”

Iron Eyes said the proliferation of violations in South Dakota is primarily because of enormous financial benefits created by cycling Indian children through public and private foster care services and by classifying every Indian child as “special needs,” thereby reaping more federal funds for their cases. This, he said, created a “perverse incentive” for a system that preyed on the most vulnerable population in the United States.

Last year, the LPLP assisted the South Dakota tribes in establishing their own child and family services under the Title IV-E Federal Foster Care Program through the Office of the Administration for Children and Families. In December, the Oglala and the Standing Rock Sioux Tribes received funding for planning grants, with the ultimate goal of providing these services “by Natives for Natives.”

“The tribes must be directly funded to run their own Child and Family Service Programs,” said Iron Eyes. “Further, states that refuse or fail to comply with ICWA must be punished with fines, withholding of funds or possible civil rights violations and the federal government must remain ever vigilant against the abuse of power that continues to run rampant in South Dakota.”

According to the BIA, hundreds of individual Indian people and organizations representing Indian child welfare advocacy responded to the agency’s request for comments last year. The overwhelming majority of the respondents asked the agency to update its ICWA guidelines, which had not been revised since 1979. Included in their comments were suggested changes and revisions to the guidelines, which have been all but ignored by state social service agencies and courts across the country for years.

The updated guidelines, said Washburn, will provide much-needed clarity and comprehensive direction in for determining whether a child is an Indian child, identifying the child’s tribe, and notifying its parent and tribe as early as possible before determining placement. Further, they will provide clear instruction on the application of “active efforts” to prevent the breakup of the Indian family and provisions which carry the presumption that ICWA’s placement preferences are in the best interests of Indian children.


“For too many years, some of Indian country’s youngest and most vulnerable members have been removed from their families, their cultures, and their identities,” said Washburn. “Congress worked hard to address this problem by enacting the Indian Child Welfare Act. Yet, today too many people are unaware of this important law and, unfortunately, there are some that work actively to undermine it. Our updated guidelines for state courts will give families and tribal leaders comfort that the Obama Administration is working hard to provide better clarity so that the courts can carry out Congress’ intent to protect tribal families, preserve tribal communities, and promote tribal continuity now and into the future.”

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value116's picture
Submitted by value116 on
Can any agency or individual be challenged retroactively, any loophole at all, to bring justice for Baby Veronica and return her to her dad and her true family? Can the adoption agency be sued for violations of law and be put out of business?

100IndigenousAmerican's picture
Submitted by 100IndigenousAm... on
How about using the United Nations Convention held in 1989 on the Rights of the Child to establish a “codified rights of Native American children to a good education. ”The USBIE under the USBIA and reservation public schools are doing zero for our children. BIE is now relying on "one perspective" view to blame parents and the community. In Kaibeto the sole admin has become abusive and unwilling to compromise, this is true in many places across Navajo Nation. Without the parents and other stakeholders, how can we sustain any improvement? It is absolutely the right time to hold educational operations up to a high standard. From training teachers with NBC certified instructional coaches to teachers with wide scale distribution of state of the art computers loaded with educational accounting and instructional software. The non-culturally relevant "National Assessments" is the BIE order of the day. Why is Finland, a constant top in the world performer avoid national assessments and rely mainly on teacher prepared tests. Contrary to Finnish approach to education, the USBIE rely on top down training and the schools Principals echo things they are clueless to in multiple ways. Teachers need to travel, choose their own task-orientation training. ICWA is rooted in other things, children are the future and survival of our distinctiveness. I am sick of hearing why Native children cannot learn; heck yes, all Native American children can learn.

dinehtahdoh's picture
Submitted by dinehtahdoh on
Tribes all have high unemployment, maybe our problem could be the solution to another problem. States take our children and elderly because we lack facilities to take care of our own. We are lulled into accepting wrong because we think it is the norm. For example, near Window Rock, AZ we are served from Gallup, NM by K-12 GMCS district serving approximately 75% Native American children using over 130 million budget. The same oligarchy class families’ that denied us equal participation in commerce from my generation (22-42) back to the last century still control our school district. The offspring of these white people that broadcast widely that "Indians can't learn," are in control of the board and the money. These associates through marriage, friendship or old school chums of the non-Indian oligarchy class are hubris people. We have one token incompetent Navajo serving as one of the two Assistant Superintendents that will never voice the inequities. Currently, our Native schools still have over less than 5mb internet speed and the other schools have over 20mb. The reservation has decrepit facilities and grounds and the schools serving non-Indians have pristine buildings with manicured landscaping. The REZ schools are understaff; we have less than 50% technology equipment for instructions, and our majority Navajo school board accepts this as fact because they are told "we have slow internet." Our schools received extra money to improve the performance using the same non-Indians that created the problem through UVA modeling. The governments ignore the fact that the world’s top schools do not use anything like the mostly unproven UVA model. Flagrantly, the all-white Principals will travel to places as far away as Boston using $100,000.00 of new recruitment money received for mindless statistical improvement. The Mormon influence in the schools is subtly against cultural teaching because Dineh spiritual values are our core and not monotheistic. The abuse against our children into the next generation is widespread in many ways in the School District. This is occurring minutes from the Navajo Nation capital, and we have come to accept the abuse and waste because of supporting political speeches from an ignorant NM Governor, the sleeping Navajo Nation, the clueless U.S. Department of Education, the USBIA and the “I represent all the voters” Navajo school board members.

value116's picture
Submitted by value116 on
So true! All Native American children can learn and have much to offer! When children don't learn, it's because the learning is from the top down and is not relevant to the life, creativity or imagination of the child. "For what purpose am I learning this?" That's in everyone's mind. Too often, politicians or businessmen try to influence that educational system. There is a purpose to their madness. There are no easy answers. That said, it is up to us to ensure that the education of our children is relevant to their daily lives.

monkette's picture
Submitted by monkette on
The problem with the Administration for Children and Families at Health and Human Services is that they fail to ENFORCE any of their guidelines when it comes to complying with existing child welfare laws. A rewrite of guidelines is just that, a rewrite, nothing more. States such as California have re-written their state constitutions to further the abuse of Native Americans via their own interpretation of existing ICWA laws. Just ask ex-referee Sobel, the touted American Indian judge of California who was allowed to do the state rewrite...and who btw is a caucasian jewish woman. Reminds me of the picture going around the internet of the White House Council on Native American Affairs, which shows a packed meeting room of ALL white people and NO natives. So they did some paperwork but it's all about enforcing compliance which we know is NOT done by the Administration of Children and Families in any child welfare programs across the country let alone the ICWA laws. See Jan 27, 2015 report by the Children's Advocacy Institute, titled Shame on the U.S., which describes the negligence of ACF to fine/enforce compliance to the state run programs. ACF's failure to enforce guidelines and laws has allowed child welfare programs across this country to run rampant with corruption. I have been enrolled with my federally recognized tribe since birth in 1966. My brother and I suffered tremendously when we were illegally adopted into a pre ICWA family and abused severely. Both of us have suffered at the hands of the united states government genocidal policies and what's more to know is that my entire family and tribe have suffered as well....for at least 5 generations. For the last 5 generations the us gov't has removed every child from their mother in our particular family tree, including my own four children. Back then it was indian missions and boarding schools, then it was assimilation, now it's just plain discrimination and racism using a corrupt broken child welfare program to do so. My children and I were told we are not American Indians because we do not live on a reservation. Thanks to the continuing genocidal policies of this corrupt government and perverted child welfare laws like ICWA, California has stripped the proud heritage from the direct descendants and 3rd great grandchildren of both Chief Flatmouth and Chief Hole in the Day, the elder....who are my children and 5th generation victims of the united states. Congratulations America on your paper tiger bs ICWA show.