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Our firm defended a tribal absentee ballot law (denying absentee ballots to non-resident members) against constitutional attack in Jacobson v. Eastern Band of Cherokee Indians, No. CV-05-101 (Supreme Court of the Eastern Band of Cherokee Indians, Nov. 29, 2006).

General Memorandum 16-027

General Memorandum 16-027
ACF Proposes Rule to Require State Title IV-E Foster Care/Adoption Agencies to Collect Indian Child Welfare Act Implementation Data

The Administration for Children and Families (ACF) has proposed in the attached April 7, 2016, FEDERAL REGISTER notice, that state Title IV-E Foster Care and Adoption agencies begin collecting and reporting data specific to the Indian Child Welfare Act (ICWA). This proposed rule would modify the federal Adoption and Foster Care Analysis and Reporting System (AFCARS) under which state Title IV-E agencies gather and report data with respect to adoption and foster care. Even though ICWA was enacted 37 years ago and applies to state child custody proceedings involving an Indian child who is a member of or eligible for membership in a federally recognized tribe, there had been no requirement that ICWA-related data be held in AFCARS. The proposed rule is a significant development. Comments are due by May 9, 2016.

We also attach a letter to tribal leaders dated April 15, 2016, announcing two consultation and listening sessions on the proposed rule and providing an overview of the rule. The sessions are Friday, April 22 and Monday, April 25 and can be accessed via call-in or by joining a webinar. The attached letter contains detailed information on how to join the meetings.

The proposed rule would require state Title IV-E agencies to collect and report on information concerning efforts to identify whether a child is an Indian child as defined in ICWA. For children for whom ICWA applies, information is requested on actions taken to prevent breakup of the family; notification to tribes and parents of child custody hearings; active efforts to reunify families; foster care and adoptive placement preferences; information regarding cases where parental rights were terminated; and transfers of ICWA cases from state court to tribal court.

The National Indian Child Welfare Association has long-advocated for collection of data by state child welfare systems relating to implementation of ICWA and is urging tribes and tribal organizations to file comments on the proposed rule. In addition, the Justice Department's Task Force on American Indian and Alaska Native Children Exposed to Violence report and the HHS Secretary's Tribal Advisory Committee recommended development of an ICWA-related data collection system through AFCARS. American Indian and Alaska Native children nationally are placed in state foster care at a rate over two times their populations (in some states the disproportionality is much higher) yet there is no comprehensive data on children in state child welfare systems for whom the Indian Child Welfare Act applies.

Please let us know if we may provide additional information or assistance regarding filing comments on the proposed rule which would add Indian Child Welfare Act-related elements to the federal data collection system on foster care and adoption.

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Inquiries may be directed to:
Karen Funk (kfunk@hobbsstraus.com)

Available Documents for Download ( any referenced attachments are included in download )


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