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New federal rule aims to help Native children remain in tribal communities

WASHINGTON — Advocates for Alaska Native children are cheering a new federal regulation that they say could help keep Native children from being removed from their communities.

The new regulation, which will go into effect at the end of the year, is meant to provide more consistent and stricter interpretation of the 1978 Indian Child Welfare Act — a law designed to counter the high rate of Indian and Native children being removed from their homes and communities, and put into foster care or adoption with non-Native people.

The regulation would be the first major effort to put legal force behind federal directions for implementing the 38-year-old law, and both Native organizations and the Alaska government hope it could change the way the child welfare system handles Native children.

Alaska Native children account for 55 percent of the state's out-of-home foster care placements, though they make up only about 20 percent of the state's child population. That's an even more drastic disparity with the rest of the U.S.; nationally, Native children are 2.5 times more likely to end up in state foster care, according to the Bureau of Indian Affairs.

The 1978 law was prompted by the widespread removal of Native children from their home tribes. From 1973 to 1976, nearly one in 30 Alaska Native children were adopted, and 93 percent of them were placed with non-Native families, according to comments filed with the federal government by Heather Kendall Miller, a senior attorney at the Native American Rights Fund.

"ICWA was designed to safeguard Native children from undue separation from their families and cultural identity," said Secretary of the Interior Sally Jewell. "It is in a child's best interest to keep their family intact when it can be done safely, and provide pathways to connect with the child's larger family and community."

The new regulation replaces "guidelines" for meeting the law's requirements, which Alaska's courts have ruled are not binding. A regulation, unlike federal guidance, has the binding force of law.

Alaska Federation of Natives President Julie Kitka applauded the rule, saying it would "add powerful protections for Alaskan children caught up in child custody proceedings." Despite the intent of the 1978 laws, Native children in Alaska continue to be removed from their communities by the Alaska Office of Children's Services, Kitka said.

The state government expressed support for the new regulation, saying  despite its best efforts, the "desired effects" of the Indian Child Welfare Act have never been realized.

"These new regulations provide greater clarity and clear direction to ensure increased compliance and better outcomes for Alaska Native children and their families," said Department of Health and Social Services Commissioner Valerie Davidson. The new law provides a clearer path to meeting not just the requirements, but the spirit of the law, Davidson said.

Many Alaska Natives have long argued the efforts to meet the requirements of the Indian Child Welfare Act are uneven across the state, and some courts and social workers make little effort to keep children tied to their Native heritage and families.

The rule stems from years of court rulings applying different standards for implementing the Indian Child Welfare Act across the United States. A federal advisory committee recommended the regulation in a November 2014 report on Native children's exposure to violence.

The new rule requires state courts to ask if a child is an "Indian child" at the start of all foster care, adoption, and termination-of-parental-rights proceedings. It includes more requirements for notice of proceedings, and more "active efforts" — instead of "reasonable efforts" — to keep a child with his or her family. The rule focuses on favoring "extended family placements, including placement within a child's broader kinship community, and placement with siblings," according to the Bureau of Indian Affairs, which issued the rule.

This means tribes will be given "prompt" notice when the state brings "involuntary" proceedings to remove a child from a home, and courts will be encouraged to provide tribes with ways to be involved in a case without appearing in person in court, which can be difficult with travel requirements. And the new regulation will require that "expert" witnesses "have specific knowledge of the prevailing social and cultural standards of the Indian child's Tribe," according to the Bureau of Indian Affairs.

"The final rule builds upon the work of tribes and states by clarifying the Indian Child Welfare Act's requirements, promoting consistency in Indian child placement proceedings, and ensuring that regardless of the state court forum, children and their parents receive the active efforts envisioned by Congress to maintain family and community," said Lawrence S. Roberts, acting assistant secretary for Indian Affairs. "This rule promotes family and community by ensuring that if a Native child has been removed from their home previously, they will have a pathway for reunification with their family."

The proposed rule, issued last year, garnered more than 2,100 written comments from the public — a number the administration said is unprecedented for the bureau.

That included many from Alaska residents and Native organizations, largely in favor of the regulation.

One tribal member from Sitka wrote the bureau to express "feelings of hopelessness" stemming from witnessing a lack of state effort to follow guidelines of the welfare act, such as seeking out relatives to take in Native children who are being removed from their parents' care. Despite innovative efforts to effect change, lasting impacts have proven elusive and broken families continue to be traumatized, the commenter told the bureau.

A tribal citizen from Chickaloon shared personal stories of family members split apart by adoption, out-of-state boarding schools and difficulty navigating the standards of the welfare act.

But others raised concerns about the regulation. One Alaska Native said the requirements would place the interests of the tribes over the interests of the child, even if the child has no personal Native history.

The American Academy of Adoption Attorneys opposed the regulation, calling new limits on who can testify as to the best interest of the child "arbitrary," saying it would limit the rights of biological parents and arguing the regulation gives the federal government too much power over state courts.

And a coalition of adoption organizations, including the National Council for Adoption, Catholic Charities and others, argued the regulations "may well be harmful to children," and are beyond the scope of the federal government's authority under the law.

"While we support the intent and purpose of the Indian Child Welfare Act, and recognize that culture should be a consideration when making a determination which could have a major impact on a child's life, nevertheless, it should never be the overriding consideration when its application would be to the detriment of a child's needs," the adoption groups wrote. They also argued that voluntary adoptions — where a Native mother chooses a non-Native family to adopt her child — would be hampered by the regulations, which "completely eviscerate an individual's constitutional right to privacy and anonymity."