On March 20, the BIA issued an expansive set of proposed regulations regarding state implementation of the Indian Child Welfare Act (ICWA). This is an exceptionally important development. Previously, with regarding most parts of ICWA, the BIA only issued guidelines. The Guidelines are persuasive authority that courts can look to for guidance, but are not binding. The first Guidelines were issued in 1979, and were updated for the first time in 35 years in February of 2015. Unlike the Guidelines, the proposed regulations would likely be binding mandatory authority. The government website with the new Guidelines and the proposed Regulations is linked here, and the documents are also linked below from this site.
- 2015_03_20 Proposed ICWA Regulations
- 2015_02_25 Revised ICWA Guidelines
- 1979 BIA ICWA Guidelines
- 1978 ICWA Full Text (from NICWA)
- 1978 ICWA Full Text (LII)
The proposed Regulations are similar to, but not the same as, the new Guidelines. For example, the notice provisions of the Regulations use mandatory language rather than the permissive language used in the new Guidelines with regard to voluntary proceedings.
I said above that the new Regulations would likely be binding mandatory authority. When the original Guidelines were issued in 1979, the BIA concluded that it did not have the authority to issue the Guidelines as regulations. As such, there could be a legal challenge to the authority of the BIA to issue these regulations. From the introduction to the 1979 Guidelines:
- Some commenters also recommended that the guidelines be published as regulations and that the decision of whether the law permits such regulations to be binding be left to the court. That approach has not been adopted because the Department has an obligation not to assert authority that it concludes it does not have.
Unlike the new Guidelines, which have been justifiably criticized as having been issued by surprise without sufficient opportunity for public input, there is a comment period for the new Regulations. This Federal Register site provides information on how to provide comments on the proposed regulations. The deadline to submit a formal comment is May 19, 2015. Comments may be submitted at that website, by email to email@example.com with “ICWA” as the subject line, or by mail. There is also a tribal consultation session April 23 from 9:00-noon at the Ramkota in Rapid City, and a public meeting later that day from 1:00-4:00.