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Prior to the founding of Hobbs Straus, Jerry Straus was lead Washington, D.C. counsel in the first large scale case for the restoration of historic Indian land – the restoration of the 48,000 acre Blue Lake lands to the Taos Pueblo.

General Memorandum 17-002

General Memorandum 17-002
BIA Issues New Indian Child Welfare Act Guidelines; HHS Issues Final Rule Which Includes Collection of ICWA Data

In the past year, long-term efforts by tribes, Indian organizations and child welfare advocates to improve the implementation of the Indian Child Welfare Act (ICWA) were realized when federal agency regulations were finalized regarding both ICWA implementation and inclusion of ICWA data in the federal child welfare placement database. The Bureau of Indian Affairs (BIA) issued its ICWA Proceedings Final Rule on June 14, 2016 (to take effect December 12, 2016) followed by issuance of Guidance for that Rule on December 30, 2016. The Department of Health and Human Services (HHS) issued on December 14, 2016, a new Adoption and Foster Care Analysis and Reporting System (AFCARS) Final Rule which for the first time will require state Title IV-E Foster Care and Adoption agencies to report on data elements specific to ICWA.

BIA ICWA Implementation Rule and Guidance. The BIA Rule on ICWA proceedings addresses state court implementation of ICWA in Indian child welfare proceedings and the required state maintenance of ICWA records. It also provides clarity regarding numerous matters including: identification early in the proceedings as to whether a child is Indian; notice to parents and tribes in involuntary proceedings; standards for denial of transfer of cases to tribal court; expert witness criteria; placement preferences; rights of adult adoptees to information from the state; emergency proceedings; and clarification regarding what some courts have deemed the "existing Indian Family exception". (See our General Memorandum 16-038 of June 20, 2016.)

The BIA Guidance for this Rule was issued on December 30, 2016. The Guidance does not have the effect of law. Rather, it includes explanatory information about the ICWA statute and regulations and provides concrete examples for consideration by state agencies and state courts when implementing ICWA. The Department of Interior press release of December 30, 2016, notes that state agencies and state courts have "sometimes differed in their interpretations of the law and been inconsistent in their implementation of it. To address this problem, the updated guidelines provide information for them to consider in carrying out the Act's and the final rule's requirements, often drawing upon approaches states have already used."

The BIA Rule may be found here:
https://www.gpo.gov/fdsys/pkg/FR-2016-06-14/pdf/2016-13686.pdf

The BIA Guidance may be found here:
http://bia.gov/WhoWeAre/BIA/OIS/HumanServices/IndianChildWelfareAct/inde...

You may also access the Guidance by going to www.bia.gov and clicking on "Indian Child Welfare Act" on the right-hand side of the page.

HHS Adoption and Foster Care Analysis and Reporting System Rule. The HHS Rule on AFCARS was issued December 14, 2016. AFCARS provides national information on children in foster care and children who are adopted and is used to inform national policies and to guide child welfare practices. The data is made available in a Child Welfare Outcomes Annual Report. This Rule replaces the one issued in 1993.

Of significance is that the Rule incorporates over 30 ICWA-related data elements that are to be collected and reported on to HHS by state Title IV-E (Foster Care and Adoption Assistance) agencies in an effort to have more comprehensive national data on the status of American Indian/Alaska Native children to whom ICWA applies. Among the ICWA data elements are: whether a child is a member of, or eligible for, membership in a federally recognized tribe; efforts made at family reunification; whether the placement was an ICWA preferred placement; and the status of transfer of the case to tribal court. The National Indian Child Welfare Association will be making available a detailed paper on the various ICWA-related data elements in the AFCARS Rule.

The AFCARS Rule may be found here:
https://www.gpo.gov/fdsys/pkg/FR-2016-12-14/pdf/2016-29366.pdf

Please let us know if we may provide additional information about the BIA Indian Child Welfare Act Rule and Guidance or the HHS Adoption and Foster Care Analysis Reporting System Rule.

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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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