Photo by Suzette Brewer
Hillary Tompkins, Solicitor General at Interior, Lawrence S. Roberts, Acting assistant secretary for BIA, Commissioner Raphael Lopez from the Administration on Children, Youth and Families; and Sam Hirsch, deputy assistant attorney general for the Department of Justice are seen at the opening session of the 34th annual National Indian Child Welfare Association.

Federal Agencies Launch Initiative to Support the Implementation and Enforcement of ICWA

Suzette Brewer

Today at the opening session of the 34th annual National Indian Child Welfare Association in St. Paul, Minnesota, acting Assistant Secretary for the Bureau of Indian Affairs Lawrence S. Roberts announced an interagency memorandum of understanding (MOU) in collaboration with the Departments of Justice and Health and Human Services to ensure compliance with and implementation of the Indian Child Welfare Act.

Calling for more robust enforcement and compliance with ICWA, the three federal agencies were joined this morning by Minnesota Governor Mark Dayton, Congresswoman Betty McCollum (D-Minnesota), and St. Paul Mayor Chris Coleman in support of the federal law, which has recently come under attack by the adoption industry seeking to overturn the 38-year-old federal statute.

“This MOU marshals the appropriate focus and resources of Interior, Justice and HHS to ensure that Congress’s intent in protecting Indian children and families is carried out,” said Roberts. “We want to assure Indian families and tribal leaders that the Obama Administration’s dedication to ICWA’s goals remains an enduring policy for Indian country. Focused implementation and compliance of ICWA protects Indian children and families, strengthens the social fabric of tribal communities, and ensures that tribes are able to serve their citizens for generations to come.”

According to the BIA, the purposes of the MOU are fourfold: To establish the continued commitment of the three partner agencies regarding the importance of ICWA and its implementation for the health and well-being of Indian children, families, and communities; to formally establish the ICWA Interagency Workgroup to promote the purposes of ICWA and the agencies' mutual interests in ensuring implementation and compliance; and to promote communication and collaborative efforts in federal activities that support ICWA implementation and compliance; and to establish structures and procedures to ensure that the Workgroup operates effectively and efficiently.

“This is a critical time for ICWA given the unprecedented attacks on the statute, which goes to the heart of Congress’ authority to pass legislation regarding tribes and Indian people,” said Sam Hirsch, the principal deputy assistant attorney general for the DOJ, in his remarks to the NICWA general assembly. “We are handling lawsuits that challenge the constitutionality of ICWA itself, as well as the BIA guidelines interpreting the statute. Importantly, these cases could potentially have repercussions for other laws regarding Indian tribes and their members. The popular press accounts have a similar theme. In those accounts, there is no recognition of the sovereignty of tribes, of the significance of tribal citizenship or the legal, moral framework that underpins federal policy in this area. This portrayal of ICWA is grossly distorted.”

According to the BIA, each federal agency will designate the appropriate components or subcomponents to participate in the Workgroup. Additionally, other federal agencies may participate in the activities of the Interagency Workgroup as appropriate and, with the written agreement of all then-current permanent members, may also become permanent members by signing on to the MOU.

“We know from the federal Adoption Foster Care Analysis Reporting System (AFCARS) that American Indian/Alaska Native children are disproportionately represented in most child welfare systems nationally at two times their population rate and as much as 10 times in state systems―that is unacceptable,” said Raphael Lopez, Commissioner of the Administration on Children, Youth and Families (ACYF). “These are data points that tell the story of our children. They tell the story of our families, they tell the story of America. It is often not the easiest to hear, but important to squarely name and engage in issues of race and class and culture and politics that we must struggle with every day to make this work.”

Lopez said the ICWA Interagency Workgroup is an important step in aligning Congress’ intent in passing ICWA with the force of federal agencies to support its continued enforcement. Additionally, he said that, for the first time since ICWA was passed in 1978, the AYCF will begin specifically collecting data under the AFCARS system on the well-being of American Indian/Alaska Native Children.

“Why does this matter? Because it will be able to tell us exactly what is happening to every child across the country,” said Lopez. “We know that ICWA is the best practice, we know it is the gold standard. It is the law and we are going to enforce it.”

Addressing the recent firestorm of controversy surrounding the return of a Choctaw Nation tribal member to her relatives in Utah by the Los Angeles County DCFS, acting Assistant Secretary Roberts said that while foster families are deserving of respect for the work they do in providing temporary homes to children in state custody, that this was a standard reunification case that is the law in most states across the country.

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“This was a reunification of a child with her family and two sisters, which is a very common objective among the courts in over 35 states,” said Roberts, who is also an attorney. “This was not national news, so it is unfortunate that these folks want to use a 6-year-old girl to spin their narrative, in which they ignore the facts and do not follow the law. So it’s important to protect the privacy of our children while we continue to share the facts and the law. This child is with her family and ICWA supported that.”

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