 Rebekah Krispinsky, Assistant Solicitor Juge Gregg, Attorney CWAG Annual Meeting: July 18, 2016

 Background on Indian Child Welfare Act  Interagency efforts to promote compliance with ICWA o U.S. Department of Justice o U.S. Department of Health and Human Services o U.S. Department of the Interior  Overview of DOI’s final ICWA regulation

 25 USC Sections 1901 et seq.  Established minimum federal standards (procedural and substantive) for State child custody proceedings involving an “Indian child”  Aimed to protect rights of Indian children and foster continued tribal existence

Approximately 25-35% of all Indian children were being separated from their families. Cultural biases & ignorance of Native cultural and social standards were a cause. Negative effects on children, families, Tribes.

 Coordinated approach to training/outreach.  Data collection and analysis.  Coordination on rulemakings. o HHS AFCARS. o DOI ICWA.

Today, I am pleased to announce that the Department of Justice is launching a new initiative to promote compliance with the Indian Child Welfare Act. Under this important effort … we will … take appropriate, targeted action to ensure that the next generation of great tribal leaders can grow up in homes that are not only safe and loving, but also suffused with the proud traditions of Indian cultures. Attorney General Eric Holder December 3, 2014

 Amicus briefs filed since March 2013 o Adoptive Couple v. Baby Girl – U.S. Supreme Court Held: “25 U.S.C. § 1912(f) … does not apply when, as here, the relevant parent never had custody of the child. We further hold that § 1912(d) … is inapplicable when, as here, the parent abandoned the Indian child before birth and never had custody of the child.” o Alaska v. Central Council of Tlingit & Haida Indian Tribes of Alaska – Alaska Supreme Court Held: Tribe retains inherent authority to exercise concurrent jurisdiction to adjudicate child support for tribal children, even if parents are not Tribal members. o Oglala Sioux Tribe v. Van Hunnik – South Dakota Federal Dist. Court Held: State “developed and implemented policies and procedures for the removal of Indian children from their parents’ custody in violation of the mandates of [ICWA] and in violation of the Due Process Clause.”

 Amicus briefs filed since March 2013 (continued) o Native Village of Tununak v. Alaska – Alaska Supreme Court Held: “Because the Supreme Court’s holding in Baby Girl is clear and … because … [Grandmother] did not ‘formally [seek] to adopt’ [Child] in the superior court, … “there simply is no ‘preference’ to apply[,] [as] no alternative party that is eligible to be preferred under § 1915(a) has come forward[,]” and therefore ICWA “§ 1915(a)’s [placement] preferences are inapplicable.” o In re Isaiah W. – California Supreme Court Held: “Because ICWA imposes … a continuing duty to inquire whether the child is an Indian child, … the parent may a challenge a finding of ICWA‘s inapplicability in an appeal from the subsequent order, even if she did not raise such a challenge in an appeal from the initial order.” o In re Abbigail A. – California Supreme Court Held: Invalidated one rule of court related to ICWA as inconsistent with State law and upheld another as consistent with State law and ICWA.

 Adoption and Foster Care Analysis and Reporting System (AFCARS) Rulemaking.  Child Welfare Capacity Building Collaborative work on ICWA. o Center for States. o Center for Tribes. o Center for Courts.

 1979 and 1994 Regulations  1979 and 2015 Guidelines o In 2014, Department invited public comments to determine whether to update Guidelines o Listening sessions and written comments  Proposed Rule o Public hearings and Tribal consultation sessions o Department received 2,100 written comments  Final Rule: 81 Fed. Reg (June 14, 2016) o The 2015 rule updates current Section and adds Sections – o Effective on December 12, 2016

 Determining Whether ICWA Applies o Types of Proceedings o “Indian child”  Notice o Statute prohibits any foster-care-placement or termination of parental right proceeding from being held until at least 10 days after receipt of notice of that proceeding. o Required in involuntary proceedings only.

 Adjudication of Involuntary Proceedings o Active Efforts o Standard of Evidence o Qualified Expert Witness  Placement Preferences o Good cause to depart  Emergency Proceedings  Voluntary Proceedings

 Jurisdiction and Handling Requests to Transfer Jurisdiction o State courts must determine jurisdiction. o Good cause to deny transfer.  Recordkeeping & Ongoing Obligations o States must provide BIA with final adoption decrees. o States must maintain a record of every voluntary or involuntary foster-care, preadoptive, and adoptive placement of an Indian child.

 August 15 and August 16 webinars  August 18: St. Paul, MN  August 24: Oklahoma City, OK  September 7: Sacramento, CA  September 15: Albany, NY  September 22: Pierre, SD  October 5: Anchorage, AK  October 19: Olympia, WA  November 2: Phoenix, AZ  November 15 and November 17 webinars

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