AFN Applauds BIA Final Rule on Indian Child Welfare
'Powerful protections for Alaskan children'
Lawrence S. Roberts
AFN Praises the U.S. Department of the Interior – BIA for Strengthening the Indian Child Welfare Act in Final Ruling Issued Today
The Alaska Federation of Natives, the state’s largest statewide Native organization, enthusiastically applauds U.S. Department of the Interior Acting Assistant Secretary – Indian Affairs Lawrence S. Roberts for issuing final regulations that will strengthen implementation of the Indian Child Welfare Act (ICWA) and ensure a more consistent interpretation of ICWA regardless of the child welfare worker, judge, or state involved.
“These regulations add powerful protections for Alaskan children caught up in child custody proceedings,” said AFN President Julie Kitka. “They will provide greater stability for Alaska Native children and their families and promote successful Native communities.”
“AFN’s membership, which spans every region of the state, is intimately familiar with the complex and emotional nature of protecting our most precious resource: our Alaska Native children. As such, we have wholeheartedly supported this final rule,” Kitka added.
The 1978 Indian Child Welfare Act was passed to halt the wholesale removal of Native children from their families, communities, and tribes by non-tribal private and public agencies. ICWA was intended to protect the best interests of Native children and the long-term stability of Native tribes by creating federal protections applicable in state child custody proceedings to allow for Native children to be raised in Native homes.
Unfortunately, despite the passage of ICWA and efforts by tribal leaders and others, the mass relocation of Native children continues in Alaska today. Native people are a minority in Alaska’s overall population, but Native children make up the majority of children removed from their families by the Alaska Office of Children’s Services (OCS). Native children are adopted out of our communities and into non-Native, non-relative homes at disturbingly high rates. This terrible fact was acknowledged in the recent passage of a new state foster care law, known as HB 200, which streamlines adoption proceedings involving Native children in Alaska’s foster care system.
Contributing to this tragedy is the fact that Alaska’s courts have repeatedly asserted that the BIA guidelines, while instructive, are not binding. Thus, the most important feature of the regulations is that they are regulations: they will control federal rules that Alaska courts cannot disregard.
This rule provides more certainty for state courts and state child-welfare agencies regarding how to comply with ICWA. The rule addresses everything from initially determining whether the Tribe or state (or both) have jurisdiction over the proceeding, to what recordkeeping is required after closing an ICWA proceeding. The rule will help state courts and agencies identify whether ICWA applies, and if so, which provisions of ICWA apply to the type of proceeding at hand; helps clarify federal interpretations of ICWA terms and requirements; and establishes parameters for exercising discretion in the application of ICWA’s standards. The rule also provides clarity on the requirement that “active efforts” be pursued to maintain or reunite the child with his or her family.
Child welfare workers, state court judges and state agencies deserve clear rules as they work with Native families and tribes to implement the protections of the law. This rule promotes family and community by ensuring that if a Native child has been removed from their home, they will have a pathway for reunification with their family.
AFN appreciates the many Alaska Native leaders and organizations who submitted testimony and helped document the need for these final regulations. In particular, AFN would like to thank the Alaska regional tribal consortiums, federally recognized tribes, BBNC, CIRI, and Alaska Legal Services for their technical and policy support.