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Wednesday, March 18, 2015

BIA Proposes Federal Rule (!) to Govern #ICWA Implementation (UPDATED)

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Press release here:
In keeping with President Obama’s commitment to supporting Indian families and building resilient, stable and thriving tribal communities, Assistant Secretary – Indian Affairs Kevin K. Washburn today announced that the Bureau of Indian Affairs (BIA) has published a proposed rule to govern the implementation of the Indian Child Welfare Act of 1978 (ICWA) by state courts and child welfare agencies. The proposed rule also includes changes to current regulations that govern notice to state agencies under ICWA.
“The Bureau of Indian Affairs’ proposed rule clarifies and strengthens implementation of the Act’s requirements in Indian child custody proceedings to ensure that Indian families and tribal communities do not face the unwarranted removal of their youngest and most vulnerable members,” Washburn said. “I want to thank all those who attended listening sessions and provided comments and recommendations for our updated guidelines. Their contributions helped inform this proposed rule, which seeks to protect Indian children and families. We look forward to receiving more comments and feedback throughout the rulemaking process.”
The Department will be conducting tribal consultations and public meetings on the proposed rule through May 2015 to facilitate input and comment on the proposed rule. Tribal consultations are open only to representatives of federally recognized Indian tribes. Public meetings are open to everyone.
The public and tribal hearings times and locations are listed on the press release. It looks like the first public one is in Portland during the NICWA conference. Written comments will be due 60 days after publication (3/20/15).

These are different from the recently released Guidelines in that they would be binding–not persuasive–authority. 

Pre-publication regulations here. 55 pages long. From the overview–
This proposed rule addresses ICWA implementation by State courts and child welfare agencies, including updating definitions, and replacing current notice provisions at 25 CFR 23.11 with a proposed new subpart I to 25 CFR part 23. The proposed new subpart also addresses other aspects of ICWA compliance by State courts and child welfare agencies including, but not limited to, other pretrial requirements, procedures for requesting transfer of an Indian child custody proceeding to tribal court,
adjudications of involuntary placements, adoptions, and termination of parental rights, voluntary proceedings, dispositions, and post-trial rights.
For example, the proposed rule clarifies ICWA applicability and codifies that there is no “Existing Indian Family Exception (EIF)” to ICWA. Since first identification of the EIF in 1982, the majority of State appellate courts that have considered the EIF have rejected it as contrary to the plain language of ICWA. Some State legislatures have also explicitly rejected the EIF within their State ICWA statutes. When Congress enacted ICWA, it intended that an “Indian child” was the threshold for application of ICWA.
The Department agrees with the States that have concluded that there is no existing Indian family exception to application of ICWA. The proposed rule also promotes the early identification of ICWA applicability. Such identifications will promote proper implementation of ICWA at an early stage, to prevent–as much as possible—delayed discoveries that ICWA applies
Federal Register site here.
**

The Federal Rule Making Process

Given yesterday’s announcement about the proposed ICWA rules, here is a quick and general guide to how a proposed rule becomes a part of the Code of Federal Regulations (CFR). Here is the Federal Register Tutorial: What it is and how to use it (you know you want to know the historical background of the Federal Register Act).
There is also a lot of information over at the Cornell Legal Information Institute’s Regulation Room on what federal rule making is, and what makes for effective comments.

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