Assistant Secretary Washburn Announces Revised Guidelines to Ensure that Native Children and Families Receive the Full Protection of the Indian Child Welfare Act

Guidelines clarify tribal authority, responsibilities of state courts and agencies in Indian child custody proceedings to protect tribal children and their families

Indian Affairs – U.S. Department of the Interior
WASHINGTON, D.C. – In keeping with President Obama’s commitment to supporting Indian families and building resilient, thriving tribal communities, Assistant Secretary – Indian Affairs Kevin K. Washburn today announced action the Bureau of Indian Affairs (BIA) has taken to help prevent the further dissolution of American Indian and Alaska Native families through the misapplication of the Indian Child Welfare Act (ICWA) of 1978 (Public Law 95-608).
“For too many years, some of Indian Country’s youngest and most vulnerable members have been removed from their families, their cultures, and their identities,” said Assistant Secretary Washburn. “Congress worked hard to address this problem by enacting the Indian Child Welfare Act.  Yet, today too many people are unaware of this important law and, unfortunately, there are some that work actively to undermine it.  Our updated guidelines for state courts will give families and tribal leaders comfort that the Obama Administration is working hard to provide better clarity so that the courts can carry out Congress’ intent to protect tribal families, preserve tribal communities, and promote tribal continuity now and into the future.”
In his address to the National Congress of American Indians at its winter session in Washington, DC, the Assistant Secretary announced that the BIA will publish this week its revised BIA Guidelines for State Courts and Agencies in Indian Child Custody Proceedings to support the full implementation and purpose of ICWA – the first such update since it was issued over 35 years ago.
Congress enacted ICWA after hearings which found that an alarmingly high percentage of Indian families had been broken up when public and private agencies subjected Indian children to unwarranted removal, most of whom were eventually placed in non-Indian homes.
ICWA set forth a federal preference for keeping American Indian and Alaska Native children with their families, including extended families, and deferring to tribal judgment on matters concerning the custody of tribal children.  In initially carrying out Congress’ intent, the BIA published on Nov. 26, 1979, Guidelines for State Courts; Indian Child Custody Proceedings to inform state courts and agencies of ICWA’s requirements in Indian child custody proceedings.   Until today, those guidelines had not been updated.
The guidelines will provide long-overdue guidance to state courts as they work daily to ensure full implementation of the law.  BIA’s updated guidelines build upon the good work of states like New Mexico and Wisconsin that are actively working to implement ICWA as Congress envisioned.  In Wisconsin, the state codified ICWA into state law to facilitate implementation.  New Mexico is working with tribes to review its implementation of, and compliance with, ICWA.  As part of this effort, the New Mexico Tribal-State Judicial Consortium developed an ICWA Judicial Bench Card that provides reference materials for tribal and state judges as they handle ICWA cases.  The BIA guidelines issued this week will serve as another resource for state and tribal courts and agencies.
Several long-term studies have been conducted of Native American adult adoptees.  Despite socioeconomic advantages that many of them received by virtue of their adoption, long term studies reflect that these adoptees experienced increased rates of depression, low self-esteem, and suicide.  In addition, many adult adoptees continue to struggle with their identities and have reported feelings of loneliness and isolation.  Today, the number of Native American children in foster care alone is still alarmingly high, and they are still more than twice as likely to be placed in foster care overall.
The United States Department of Justice is taking action in states like South Dakota to ensure that Native children and families receive the full protection of ICWA.  These guidelines will assist those efforts to ensure that states fully implement the federal law enacted to protect tribal communities.  In enacting ICWA, Congress recognized that this was not a tragedy only for American Indian and Alaska Native families and children, but also for tribes who have lost generations of future members and leaders.  In enacting ICWA, Congress sought to carry out the United States’ trust responsibility for protecting Indian children and the stability and security of American Indian and Alaska Native tribes and families.  Protecting Indian children reflects the highest ideals of the trust responsibility to Indian tribes and the guidelines issued today are a part of this Administration’s broader approach to ensuring compliance with ICWA.
In 2014, the Department of the Interior invited comments to determine whether to update its guidelines and what changes should be made.  The Department engaged in a process that included three listening sessions with tribes and two listening sessions with judicial organizations across the country to hear comments on how the guidelines should be updated.  The Department received comments from those at the listening sessions and also received written comments, including comments from individuals and organizations interested in Indian child welfare.  An overwhelming proportion of the commenters requested that Interior update its ICWA guidelines and many had suggestions for revisions that have been included.  The Department reviewed and considered each comment in developing these revised guidelines.
In his remarks, Assistant Secretary Washburn noted instances in which the ICWA law and BIA guidelines were not followed, preventing the goals of ICWA from being realized.  These circumstances continue to alarm tribal leaders, Indian families, and Indian child welfare advocates.
The updated guidelines will help ensure tribal children are not removed from their communities, cultures and extended families.  The guidelines clarify the procedures for determining whether a child is an Indian child, identifying the child’s tribe, and notifying its parent and tribe as early as possible before determining placement.  The updated guidelines also now provide comprehensive guidance on the application of active efforts to prevent the breakup of the Indian family.  They also provide clarification that ICWA’s provisions carry the presumption that ICWA’s placement preferences are in the best interests of Indian children.
The Assistant Secretary – Indian Affairs oversees the BIA, which is headed by a director who is responsible for managing day-to-day operations through four offices – Indian Services, Justice Services, Trust Services, and Field Operations.  These offices directly administer or fund tribally based infrastructure, economic development, law enforcement and justice, social services (including child welfare), tribal governance, and trust land and natural and energy resources management programs for the nation’s federally recognized American Indian and Alaska Native tribes through 12 regional offices and 81 agencies.
The Office of Indian Services Division of Human Services administers the BIA’s ICWA regulations at 25 CFR Part 23 and the Guidelines for State Courts.  For more information, visit

BIA’s Funding Maze Hampers Tribal Self- Governance

Gale Courey Toensing, Indian Country Today


A funding system that routes money through a bureaucratic maze with more than a dozen checkpoints before it arrives at its destination – tribal governments – is one of the obstacles Indian country faces in its quest for self-governance, the head of the Bureau of Indian Affairs said at the National Congress of American Indians annual meeting.

Rube Goldberghimself couldnt have come out with a more complicated system!” Assistant Secretary – Indian Affairs Kevin K. Washburn said, showing the amused audience a mind-boggling, arrow-marked illustration of how the funds flow. Washburn spoke to a full crowd packed into the General Assembly hall at the Hyatt Regency in Atlanta where the NCAI held its 71stannual Convention & Marketplace October 26-31.



The theme of this year’s NCAImeeting was “Tribal Governance for the Next Generation.” With that theme in mind. Brian Cladoosby, NCAI president and chair of the Swinomish Indian Tribal Community, encouraged NCAI member tribes “to remember the guidance of the generations that came before us while we move forward to continue to build a strong future to the generations to come.”

Washburn was among dozens of dignitaries – tribal leaders and federal government officials, including Interior Department Secretary Sally Jewell – who spoke at the convention. The convention’s theme prompted him to review what’s been done so far under the Obama administration to advance tribal governance and what remains to be done.

“We’re coming up on the fourth quarter,” Washburn said, referring to the last two years of the Obama administration that will end in 2016. “And it hasn’t been all victories, we’ve had some setbacks.” The top setback has been the failure so far to fix the Supreme Court’s devastating ruling in Carcieri v Salazar,which has hampered efforts to take land into trust for tribes.

“But what I’d like to do in the fourth quarter is really run up the score. We have to join together and work together to do that and NCAI is our best partner in doing that because it’s our best way of getting to tribes,” Washburn said.



Among recent victories Washburn cited the Violence Against Women Act, the Tribal Law and Order Actand the HEARTH Act.

Other achievements include the vastly improved consultation policy, copy3 million in technical assistance grants to 75 different tribes to move forward with energy projects and the settlement of over 80 lawsuits in addition to the Cobell settlement and several water rights cases. A major victory is the growing masses of land the BIA has taken into trust for tribes, despite the Carcieri ruling, Washburn said. “We’re restoring thousands of acres and literally hundreds of square miles to Indian country and that’s an important foundation for tribal governments for the next generation because land … is where a tribe’s sovereignty is the strongest.”

All of these advances have resulted in a little-known consequence that also advances tribal self-governance – the BIA’s reduced workforce from around 17,000 employees in 1981 to around 7,500 employees today. So where’d they all go? “They went to Indian country jobs,” said Washburn. “These jobs are being done better by tribal governments than they were by the federal government. They’re being done in Indian country and the people doing them are accountable to tribal governments.”

But in terms of moving tribal self-governance forward for the next generation, “we’ve got a lot of challenges,” Washburn said. Many of them have to do with how programs are funded. Several laws enacted over the years to encourage and improve tribal self-governance – the 1975 Indian Self Determination and Education Assistance Act; the 1988 tribal schools act; the Self-Government Demonstration Project Act, the Indian Employment, Training and Related Services Demonstration Act of 1992and others – have different funding requirements. And then there’s the money flow chart, which came to light when Washburn started asking why it took so long to get contract support funding out to the tribes.

“So what we have to some degree is disjointed programs and a lack of coordination between agencies sometimes,” Washburn said. “We must improve this!”

Washburn took ownership of the problem – “This is all on me,” he said – and informed the NCAI assembly that he is working with Deputy Assistant Secretary for Management Tommy Thompson to fix the problem. “We have got to get the money out to tribes quickly so that tribes can use that money when it’s needed. We’re trying!” he said. The audience gave him a standing round of applause.