Last Day for Comments

Law Professors Comment on Proposed ICWA Regulations

Posted on May 19, 2015 by Kate Fort

Here. Signed by 21 clinicians, professors, and deans representing more than 15 law schools.

Times have certainly changed since the original Guidelines were issued. Administrative law and the power of the federal government have shifted considerably in the past forty years. In addition, there was no way the federal government could foresee the dramatically different applications of ICWA across the fifty states. These new regulations are necessary because without them the application of the law is arbitrary, with Indian children treated differently depending on which state’s courtroom they are in. Having disparate interpretations of ICWA was certainly not the intent of Congress in passing a federal law, and conflicts with the rationale of the Supreme Court’s decision in Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 45-46 (1989) (describing the need for uniformity in defining ‘‘domicile’’ under ICWA). These regulations will provide a stronger measure of consistency in the implementation of ICWA and prevent the application of different minimum standards across the United States, contrary to Congress’ intent.

Here is a selection of a few of the major groups in support (as available from Regulations.gov or sent directly to us at fort [at] law [dot] msu [dot] edu):
American Bar Association
Association on American Indian Affairs
Michigan Tribal-State Judicial Forum
National Indian Child Welfare Association
National American Indian Court Judges Association
National Council of Juvenile and Family Court Judges

Today is the last day to comment–send an email to comments@bia.gov with “ICWA” in the subject line.



And this is an important paper:

[PDF] The Indian Child Welfare Act's Waning Power After Adoptive Couple v. Baby Girl

K Kruck - Northwestern University Law Review, 2015

... These findings were based on a North Dakota study and a study of tribes in the American
Northwest. Id. ...