Indian Child Welfare Act Proceedings

Federal RegisterJun 14, 2016

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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

25 CFR Part 23

[K00103 12/13 A3A10; 134D0102DR-DS5A300000-DR.5A311.IA000113]

RIN 1076-AF25

Indian Child Welfare Act Proceedings

AGENCY:

Bureau of Indian Affairs, Interior.

ACTION:

Final rule.

SUMMARY:

This final rule adds a new subpart to the Department of the Interior's (Department) regulations implementing the Indian Child Welfare Act (ICWA), to improve ICWA implementation. The final rule addresses requirements for State courts in ensuring implementation of ICWA in Indian child-welfare proceedings and requirements for States to maintain records under ICWA.

DATES:

This rule is effective on December 12, 2016.

FOR FURTHER INFORMATION CONTACT:

Ms. Elizabeth Appel, Office of Regulatory Affairs & Collaborative Action—Indian Affairs, U.S. Department of the Interior, 1849 C Street NW., MS 3642, Washington, DC 20240, (202) 273-4680;

elizabeth.appel@bia.gov

SUPPLEMENTARY INFORMATION:

I. Executive Summary

A. Introduction

B. Overview of Final Rule

II. Background

A. Background Regarding Passage of ICWA

B. Overview of ICWA's Provisions

C. Need for These Regulations

D. The Department's Implementation of ICWA

III. Authority for Regulations

A. Statements Made in the 1979 Guidelines

B. Comments Agreeing That Interior May Issue a Binding Regulation

C. Comments Disagreeing That the Department Has Authority To Issue a Binding Regulation

1. Agency Expertise

Chevron

Deference

3. Primary Responsibility for Interpreting the Act

4. Tenth Amendment and Federalism

5. Federalism Executive Order

6. Change in Position From Statements Made in 1979

7. Timeliness

IV. Discussion of Rule and Comments

A. Public Comment and Tribal Consultation Process

1. Fairness in Proposing the Rule

2. Locations of Meetings/Consultations

B. Definitions

1. “Active Efforts”

2. “Agency”

3. “Child-Custody proceeding”

4. “Continued Custody” and “Custody”

5. “Domicile”

6. “Emergency Proceeding”

7. “Extended Family Member”

8. “Hearing”

9. “Imminent Physical Damage or Harm”

10. “Indian Child”

11. “Indian Child's Tribe”

12. “Indian Custodian”

13. “Parent”

14. “Reservation”

15. “Status Offense”

16. “Tribal Court”

17. “Upon Demand”

18. “Voluntary Placement,” “Voluntary Proceeding,” and “Involuntary Proceeding”

19. Suggested New Definitions

a. “Best Interests”

b. Other Suggested Definitions

C. Applicability

1. “Child-Custody Proceeding” and “Hearing” Definitions

2. Juvenile Delinquency Cases

3. Existing Indian Family Exception

4. Other Applicability Provisions

D. Inquiry and Verification

1. How to Contact a Tribe

2. Inquiry

3. Treating Child as an “Indian Child” Pending Verification

4. Verification From the Tribe

5. Tribe Makes the Determination as to Whether a Child is a Member of the Tribe

E. Jurisdiction: Requirement To Dismiss Action

F. Notice

1. Notice, Generally

2. Certified Mail v. Registered Mail

3. Contents of Notice

4. Notice of Change in Status

5. Notice to More Than One Tribe

6. Notice for Each Proceeding

7. Notice in Interstate Placements

8. Notice in Voluntary Proceedings

G. Active Efforts

1. Applicability of Active Efforts

a. Active Efforts To Verify Child's Tribe

b. Active Efforts To Avoid Breakup in Emergency Proceedings

c. Active Efforts To Avoid the Need to Remove the Child

d. Active Efforts To Establish Paternity

e. Active Efforts To Apply for Tribal Membership

f. Active Efforts To Identify Preferred Placements

2. Timing of Active Efforts

a. Active Efforts Begin Immediately and During Investigation

b. Time Limits for Active Efforts

3. Documentation of Active Efforts

4. Other Suggested Edits for Active Efforts

H. Emergency Proceedings

1. Standard of Evidence for Emergency Proceedings

2. Placement Preferences in Emergency Proceedings

3. 30-Day Limit on Temporary Custody

4. Emergency Proceedings—Timing of Notice and Requirements for Evidence

5. Mandatory Dismissal of Emergency Proceedings

6. Emergency Proceedings Subsection-by-Subsection

7. Emergency Proceedings—Miscellaneous

I. Improper Removal

J. Transfer to Tribal Court

1. Petitions for Transfer of Proceeding

2. Criteria for Ruling on Transfer

3. Good Cause To Deny Transfer

4. What Happens When Petition for Transfer Is Made

K. Adjudication

1. Access to Reports and Records

2. Standard of Evidence for Foster-Care Placement and Termination

a. Standard of Evidence for Foster-Care Placement

b. Standard of Evidence for Termination

c. Causal Relationship

d. Single Factor

3. Qualified Expert Witness

L. Voluntary Proceedings

1. Applicability of ICWA to Voluntary Proceedings—In General

2. Applicability of Notice Requirements to Voluntary Proceedings

3. Applicability of Placement Preferences to Voluntary Proceedings

4. Applicability of Other ICWA Provisions to Voluntary Proceedings

5. Applicability of Placements Where Return is “Upon Demand”

6. Consent in Voluntary Proceedings

7. Consent Document Contents

8. Withdrawal of Consent

9. Confidentiality and Anonymity in Voluntary Proceedings

M. Dispositions

1. When Placement Preferences Apply

2. What Placement Preferences Apply, Generally

3. Placement Preferences in Adoptive Settings

4. Placement Preferences in Foster or Preadoptive Proceedings

5. Good Cause To Depart From Placement Preferences

a. Support and Opposition for Limitations on Good Cause

b. Request of Parents as Good Cause

c. Request of the Child as Good Cause

d. Ordinary Bonding and Attachment

e. Unavailability of Placement as Good Cause

f. Other Suggestions Regarding Good Cause To Depart From Placement Preferences

6. Placement Preferences Presumed To Be in the Child's Best Interest

N. Post-Trial Rights and Recordkeeping

1. Petition To Vacate Adoption

2. Who Can Make a Petition To Invalidate an Action

3. Rights of Adult Adoptees

4. Data Collection

O. Effective Date and Severability

P. Miscellaneous

1. Purpose of Subpart

2. Interaction With State Laws

3. Time Limits and Extensions

4. Participation by Alternative Methods (Telephone, Videoconferencing, etc.)

Adoptive Couple

Baby Girl

and

Tununak II

6. Enforcement

7. Unrecognized Tribes

8. Foster Homes

9. Other Miscellaneous

V. Summary of Final Rule and Changes From Proposed Rule to Final Rule

VI. Procedural Requirements

Note:

This preamble uses the prefix “FR § ” to denote regulatory sections in this final rule, and “PR § ” to denote regulatory sections in the proposed rule published March 20, 2015 at 80 FR 14,480.

I. Executive Summary

A. Introduction

This final rule promotes the uniform application of Federal law designed to protect Indian children, their parents, and Indian Tribes. In conjunction with this final rule, the Solicitor is issuing an M Opinion addressing the implementation of the Indian Child Welfare Act by legislative rule.

See

M-37037. Congress enacted the Indian Child Welfare Act (ICWA), 25 U.S.C. 1901

et seq.,

in 1978 to address an “Indian child welfare crisis [ ] of massive proportions”: an estimated 25 to 35 percent of all Indian children had been separated from their families and placed in adoptive homes, foster care, or institutions. H.R. Rep. No. 95-1386, at 9 (1978),

reprinted in

1978 U.S.C.C.A.N. 7530, 7531. Although the crisis flowed from multiple causes, Congress found that nontribal public and private agencies had played a significant role, and that State agencies and courts had often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families. 25 U.S.C. 1901(4)-(5). To address this failure, ICWA establishes minimum Federal standards for the removal of Indian children from their families and the placement of these children in foster or adoptive homes, and confirms Tribal jurisdiction over child-custody proceedings involving Indian children. 25 U.S.C. 1902.

Since its passage in 1978, ICWA has provided important rights and protections for Indian families, and has helped stem the widespread removal of Indian children from their families and Tribes. State legislatures, courts, and agencies have sought to interpret and implement this Federal law, and many States should be applauded for their affirmative efforts and support of the policies animating ICWA.

However, the Department has found that implementation and interpretation of the Act has been inconsistent across States and sometimes can vary greatly even within a State. This has led to significant variation in applying ICWA's statutory terms and protections. This variation means that an Indian child and her parents in one State can receive different rights and protections under Federal law than an Indian child and her parents in another State. This disparate application of ICWA based on where the Indian child resides creates significant gaps in ICWA protections and is contrary to the uniform minimum Federal standards intended by Congress.

The need for consistent minimum Federal standards to protect Indian children, families, and Tribes still exists today. The special relationship between the United States and the Indian Tribes and their members upon which Congress based the statute continues in full force, as does the United States' direct interest, as trustee, in protecting Indian children who are members of or are eligible for membership in an Indian Tribe. 25 U.S.C. 1901, 1901(2). Native American children, however, are still disproportionately more likely to be removed from their homes and communities than other children.

See, e.g.,

Attorney General's Advisory Committee on American Indian and Alaska Native Children Exposed to Violence,

Ending Violence So Children Can Thrive

87 (Nov. 2014); National Council of Juvenile and Family Court Judges,

Disproportionality Rates for Children of Color in Foster Care, Fiscal Year 2013

(June 2015). In addition, some State court interpretations of ICWA have essentially voided Federal protections for groups of Indian children to whom ICWA clearly applies. And commenters provided numerous anecdotal accounts where Indian children were unnecessarily removed from their families and placed in non-Indian settings; where the rights of Indian children, their parents, or their Tribes were not protected; or where significant delays occurred in Indian child-custody proceedings due to disputes or uncertainty about the interpretation of the Federal law.

B. Overview of Final Rule

The final rule updates definitions and notice provisions in the existing rule and adds a new subpart I to 25 CFR part 23 to address ICWA implementation by State courts. It promotes nationwide uniformity and provides clarity to the minimum Federal standards established by the statute. In many instances, the standards in this final rule reflect State interpretations and best practices, as reflected in State court decisions, State laws implementing ICWA, or State guidance documents. The rule provisions also reflect comments from organizations and individuals that serve children and families (including, in particular, Indian children) and have substantial expertise in child-welfare practices.

The final rule promotes compliance with ICWA from the earliest stages of a child-welfare proceeding. Early compliance promotes the maintenance of Indian families, and the reunification of Indian children with their families whenever possible, and reduces the need for disruption in placements. Timely notification of an Indian child's Tribe also ensures that Tribal government agencies have meaningful opportunities to provide assistance and resources to the child and family. And early implementation of ICWA's requirements conserves judicial resources by reducing the need for delays, duplication, and appeals.

In particular, the final rule addresses the following issues:

•

Applicability.

The final rule clarifies when ICWA applies, while making clear that there is no exception to applicability based on certain factors used by a minority of courts in defining and applying the so-called “existing Indian family,” or EIF, exception.

•

Initial Inquiry.

The final rule clarifies the steps involved in conducting a thorough inquiry at the beginning of child-custody proceedings as to whether the child is an “Indian child” subject to the Act.

•

Emergency proceedings.

Recognizing that emergency removal and placements are sometimes required to protect an Indian child's safety and welfare, the final rule clarifies the distinction between the requirements for emergency proceedings and other child-custody proceedings involving Indian children and includes provisions that help to ensure that emergency removal and placements are as short as possible, and that, when necessary, proceedings subject to the full suite of ICWA protections are promptly initiated.

•

Notice.

The final rule describes uniform requirements for prompt notice to parents and Tribes in involuntary proceedings to facilitate compliance with statutory requirements.

•

Transfer.

The final rule clarifies the requirement that a State court determine whether the State or Tribe has jurisdiction and, where jurisdiction is concurrent, establishes standards to guide the determination whether good cause exists to deny transfer (including factors that cannot properly be considered) and addresses transfer of proceedings to Tribal court.

•

Qualified expert witnesses.

The final rule provides interpretation of the term “qualified expert witness.”

•

Placement preferences.

The final rule clarifies when and what placement preferences apply in foster care, pre-adoptive, and adoptive placements, provides presumptive standards for what may constitute good cause to depart from the placement preferences, and prohibits courts from considering

certain factors as the basis for departure from placement preferences.

•

Voluntary proceedings.

The final rule clarifies certain aspects of ICWA's applicability to voluntary proceedings, including addressing the need to determine whether a child is an “Indian child” in voluntary proceedings and specifying the requirements for obtaining consent.

•

Information, recordkeeping, and other rights.

The final rule addresses the rights of adult adoptees to information and sets out what records States and the Secretary must maintain.

The Department carefully considered the comments on the proposed rule and made changes responsive to those comments. The reasons for the changes are described in the section-by-section analysis below. In particular, while the proposed rule would have been directed to both State courts and agencies, the Department has focused the final rule on the standards to be applied in State-court proceedings. Most ICWA provisions address what standards State courts must apply before they take actions such as exercising jurisdiction over an Indian child, ordering the removal of an Indian child from her parent, or ordering the placement of the Indian child in an adoptive home. The final rule follows ICWA in this regard. Further, State courts are familiar with applying Federal law to the cases before them. Several ICWA provisions do apply, either directly or indirectly, to State and private agencies,

see, e.g.,

25 U.S.C. 1915(c);

id.

1922;

see also

H.R. Rep. No. 95-1386, at 10-12 (identifying as two of the leading factors contributing to the high rates of Indian-child removal the lack of culturally competent State child-welfare standards for assessing the fitness of Indian families and systematic due-process violations against both Indian children and their parents during child-custody proceedings).

Holyfield,

the Supreme Court reviewed Congress's findings, which demonstrate that Congress “perceived the States and their courts as partly responsible for the problem it intended to correct.” 490 U.S. at 45. The Court concluded that “[u]nder these circumstances it is most improbable that Congress would have intended to leave the scope of the statute's key jurisdictional provision subject to definition by state courts as a matter of state law.”

Id.

The Department similarly concludes here that “[u]nder these circumstances,” it is improbable that Congress intended the broad grant of rulemaking authority in § 1952 to authorize the Department to issue binding rules that interpret only those portions of ICWA that expressly delegate responsibility to the Department.

4. Tenth Amendment and Federalism

Comment:

Some commenters asserted that the proposed rule violates the Tenth Amendment of the U.S. Constitution because it commandeers State courts, or for unspecified reasons. Commenters also cited, or made statements that repeated, Federalism concerns that the Department briefly referenced in 1979. These commenters pointed out that the Department stated in 1979 that it would have been extraordinary for Congress to authorize the Department to exercise supervisory authority over State or Tribal courts, or to legislate for them with respect to Indian child-custody matters, in the absence of an express congressional declaration to that effect.

See

44 FR 67584. The Department also stated that nothing in ICWA's legislative history indicated that Congress intended to delegate such extraordinary authority.

Id.

Several commenters stated that the rule violates Federalism principles because it tells State-court judges what they may and may not consider, and exactly how to interpret a Federal law.

Response:

The Department has reflected on these comments and has reconsidered the statements it made in 1979. While ICWA does not “oust the

States of their traditional jurisdiction over Indian children falling within their geographical limits,” H.R. Rep. No. 95-1386, at 19, Congress enacted ICWA to curtail State authority in certain respects. At the heart of ICWA are provisions that address the respective jurisdiction of Tribal and State courts. Other important provisions of ICWA require State courts to apply minimum Federal standards and procedural safeguards in child-custody proceedings for Indian children. This rule serves to clarify ICWA's requirements, with the goal of promoting uniform application of the statute across States.

While a few commenters asserted that this rule violates the Tenth Amendment, the Supreme Court repeatedly has reaffirmed the “power of Congress to pass laws enforceable in state courts.”

New York

United States,

505 U.S. 144, 178 (1992);

Testa

Katt,

330 U.S. 386, 394 (1947);

F.E.R.C.

Mississippi,

456 U.S. 742, 760-61 (1982). The Court also has explained that “[i]f a power is delegated to Congress in the Constitution, the Tenth Amendment expressly disclaims any reservation of that power to the States.”

New York,

505 U.S. at 156. Here, Congress enacted ICWA primarily pursuant to the Indian Commerce Clause, which provides Congress with plenary power over Indian affairs. 25 U.S.C. 1901(1). In clarifying ICWA's requirements, the Department is exercising the authority that Congress delegated to it. Having considered the nature of this rule, the comments received, and the relevant case law, the Department concludes that this rule does not violate the Tenth Amendment for the same reasons that ICWA does not violate the Tenth Amendment.

The Department also has reflected on the Federalism concerns it noted in 1979. The Department does not view this rule as an “extraordinary” exercise of authority involving an assertion of “supervisory control” over State courts. While the Department's promulgation of this rule may override what some courts believed to be the best interpretation of ambiguous provisions of ICWA or how these courts filled gaps in ICWA's requirements, the Supreme Court has reasoned that such a scenario is not equivalent to making “judicial decisions subject to reversal by executives.”

Nat'l Cable & Telecomm. Ass'n

Brand X Internet Servs.,

545 U.S. 967, 983 (2005). Rather, the Department's rule clarifies a limited set of substantive standards and related procedural safeguards that courts will apply to the particular cases before them.

For these reasons, and because Congress unambiguously provided the Department authority to issue this rule, the Department does not view Federalism concerns as counseling against the issuance of this rule.

The Supreme Court has explained that “[v]alid regulations establish legal norms. Courts can give them proper effect even while applying the law to newfound facts, just as any court conducting a trial in the first instance must conform its rulings to controlling statutes, rules, and judicial precedents.”

United States

Haggar Apparel Co.,

526 U.S. 380, 391 (1999). Of course, the construction of ICWA by State courts will “remain[ ] subject to [the Supreme] Court's supervision.”

Holyfield,

490 U.S. at 43.

In evaluating these concerns, the Department also notes that Congress provides a substantial amount of Federal funding to States for child-welfare programs,

see, e.g.,

Consolidated and Further Continuing Appropriations Act, 2015 (Pub. L. 113-235); Emilie Stoltzfus, Child Welfare: An Overview of Federal Programs and Their Current Funding (Congressional Research Service 2015), and that other Federal statutes address State family law.

See, e.g.,

42 U.S.C. 652.

5. Federalism Executive Order

Comment:

A few commenters additionally stated that the rule has Federalism implications because it has substantial direct effects on States, on the relationship between the national government and States, and on the distribution of power and responsibilities among the various levels of government. A commenter stated that the Department violates the Federalism executive order because the rule preempts State law, and the Department did not provide “all affected State and local officials” notice and opportunity to comment on that preemption as required.

Response:

The Department stated in the proposed rule that “[u]nder the criteria in Executive Order 13132, this rule has no substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” The Department thus “determined that this rule complies with the fundamental Federalism principles and policymaking criteria established in EO 13132.” The Department reaffirms these determinations, and respectfully disagrees with commenters who stated or suggested that these determinations are incorrect.

ICWA balances the Federal interest in protecting the integrity of Indian families and the sovereign authority of Indian Tribes with the States' sovereign interest in child-welfare matters. Congress carefully crafted ICWA's jurisdictional scheme so as to recognize the authority of each of these sovereigns. In crafting this scheme, Congress recognized a need to curtail certain State authority and enacted ICWA to address Indian child welfare through a statutory framework intended to apply uniformly across States. Since 1978, States have been required to comply with ICWA, and this regulation serves to interpret and fill gaps in the Federal minimum standards and procedural safeguards set forth in the statute. Many of the standards included in this rule are already being followed by a number of States.

In the notice of the proposed rule, the Department specifically solicited comments on the proposed rule from State officials, including suggestions for how the rule could be made more flexible for State implementation. 80 FR 14883. The Department carefully considered and addressed in this rulemaking all comments received concerning this regulation, some of which were submitted by State judges and other State officials.

6. Change in Position From Statements Made in 1979

Comment:

Several commenters expressed concern that the Department's issuance of a binding regulation would be inconsistent with, or impermissible in light of, statements the Department made in 1979 regarding its authority to promulgate binding regulations. These commenters asserted that the Department's issuance of a binding regulation would conflict with established case law and that the binding regulation would “sweep aside 37 years of state appellate court decisions regarding rights of children and families.”

Response:

The Department has described its reasons for departing from the statements it made in 1979. Under well-established case law, the Department's prior statements pose no bar to this regulation. The Department also notes that the final rule does not disregard State appellate-court decisions. To the contrary, the Department carefully considered State appellate-court decisions, State legislation, and State guidance documents in promulgating the final rule. Many State standards and practices are reflected in the final rule. And on many issues, the Department's review of disparate State standards reinforced the Department's view that more uniformity in the interpretation of ICWA is needed.

7. Timeliness

Comment:

Some commenters who argued the regulations are unauthorized focused on the fact that ICWA imposed a deadline of November 8, 1978 for the Department to promulgate regulations; these commenters state that the

authority for promulgating regulations expired after that date.

Response:

ICWA states that “within” 180 days after November 8, 1978, the Department shall promulgate such rules and regulations as may be necessary to carry out ICWA.

See

25 U.S.C. 1952. Regulations may be issued after the passage of a statutory deadline, however, so long as the statute, as is the case with ICWA, does not spell out explicit consequences for late action.

See, e.g., Barnhart

Peabody Coal Co.,

537 U.S. 149, 159 (2003);

Brock

Pierce Cty.,

476 U.S. 253, 262 (1986).

IV. Discussion of Rule and Comments

A. Public Comment and Tribal Consultation Process

1. Fairness in Proposing the Rule

Comment:

Commenters asserted that the 2015 Guidelines and the proposed regulations were drafted without any outreach or request for comment from adoption agencies, attorneys, or other adoption professionals. One commenter stated that all the comments that were incorporated into the proposed regulations were only from the position of Indian Tribes, and did not reflect any input from State Attorney Generals, State child-welfare agencies, or others.

Other commenters stated their appreciation for the Department's diligence in seeking input from the public. Commenters stated that the experts on Indian child-welfare matters are Tribes, because they work in the field on a daily basis and have no special interest in determining the best interest of Tribal children beyond wanting the children to succeed and be connected to their culture and community. A number of States commented favorably on the proposed rule, and provided helpful comments to improve the final rule.

Response:

The Department disagrees with the assertion that the 2015 Guidelines or proposed rule were developed without public input. As part of the preparation of the updated guidelines, the Department invited comments from federally recognized Indian Tribes, State-court representatives, and organizations concerned with Tribal children, child welfare, and adoption.

See

80 FR at 10146-67. Those comments, the recommendations of the Attorney General's Advisory Committee on American Indian/Alaska Native Children Exposed to Violence, developments in ICWA jurisprudence, and the expertise of the Department and other Federal agencies were all considered in updating the guidelines as well as the drafting of the proposed rule. Since issuing the proposed rule, the Department has engaged in a robust public comment process, as discussed above and as evidenced by the large number of written comments received by BIA on this rulemaking.

2. Locations of Meetings/Consultations

Comment:

Several commenters opposed the locations where the Department held the public hearings on the proposed rule during the public comment process. The commenters noted that all the hearings were held west of the Mississippi River, and none were held in any of the most populous States. Some commenters requested additional hearings in various locations.

Response:

The Department chose locations for public hearings based on general areas where there are likely to be larger populations of Indian children and thus more ICWA proceedings. The Department also hosted a national teleconference to accommodate other interested persons who were unable to attend an in-person session including, but not limited to, anyone who may reside far from where the in-person sessions were held. A total of 215 persons participated by teleconference. In addition, Tribal consultation sessions and public hearings were held in Oklahoma, Alaska, and several other locations. More than 2,100 written comments were received.

B. Definitions

1. “Active Efforts”

ICWA requires the use of “active efforts” to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family. 25 U.S.C. 1912(d). ICWA does not define “active efforts.” The Department finds, however, that Congress intended this requirement to provide vital protections to Indian children and their families by requiring that support be provided to keep them together, whenever possible. In particular, Congress recognized that many Indian children were removed from their homes because of poverty, joblessness, substandard housing, and related circumstances. Congress also recognized that Indian parents sometimes suffered from “cultural disorientation, a [ ] sense of powerlessness, [and] loss of self-esteem,” and that these forces “arise, in large measure from our national attitudes as reflected in long-established Federal policy and from arbitrary acts of Government.” H.R. Rep. No. 95-1386, at 12. But, Congress concluded, “agencies of government often fail to recognize immediate, practical means to reduce the incidence of neglect or separation.”

Id.

The “active efforts” requirement is one of the primary tools provided in ICWA to address this failure, and should thus be interpreted in a way that requires substantial and meaningful actions by agencies to reunite Indian children with their families. The “active efforts” requirement is designed primarily to ensure that services are provided that would permit the Indian child to remain or be reunited with her parents, whenever possible. This is viewed by some child-welfare organizations as part of the “gold standard” of what services should be provided in child-welfare proceedings.

The Department finds that there are compelling reasons for setting a nationwide definition for this critical statutory term. Although there is substantial agreement, among those State courts that have considered the issue, that active efforts requires more than simply formulating a case plan for the parent of an Indian child, there is still variation among the States as to what level of efforts is required. This means that the standard for what constitutes “active efforts” can vary substantially among States, even for similarly situated Indian children and their parents. The final rule will reduce this variation, thus promoting nationwide consistency in the implementation of this Federal right.

The final rule defines “active efforts” and provides examples of what may constitute active efforts in a particular case. The final rule retains the language from the proposed rule that active efforts means actions intended primarily to maintain and reunite an Indian child with his or her family. The final rule clarifies that, where an agency is involved in the child-custody proceeding, active efforts involve assisting the parent through the steps of a case plan, including accessing needed services and resources. This is consistent with congressional intent—by its plain and ordinary meaning, “active” cannot be merely “passive.”

The final rule indicates that, to the extent possible, active efforts should be provided in a manner consistent with the prevailing social and cultural conditions of the Indian child's Tribe, and in partnership with the child, parents, extended family, and Tribe. This is consistent with congressional direction in ICWA to conduct Indian child-welfare proceedings in a way that reflects the cultural and social standards prevailing in Indian communities and families. There is also evidence that services that are adapted to the client's cultural backgrounds are better.

See, e.g.,

Mental Health: Culture, Race, and

Ethnicity: A Supplement to Mental Health: A Report of the Surgeon General (2001); Substance Abuse and Mental Health Services Administration, A Treatment Improvement Protocol: Improving Cultural Competence (2015); Smith, T.B.

et al., (2011), Culture,

J. Clin. Psychol. 67, 166-175 (meta-analysis finding the most effective psychotherapy treatments tended to be those with greater numbers of cultural adaptations); Benish, S.G.

et al.

, (2011),

Culturally Adapted Psychotherapy and the Legitimacy of Myth: A Direct-Comparison Meta-Analysis,

58 J. of Counseling Psychol. No. 3, 279-289 (meta-analysis finding that culturally adapted psychotherapy is more effective than unadapted psychotherapy).

Unlike the proposed rule, the final rule does not define “active efforts” in comparison to “reasonable efforts.” After considering public comments on this issue, the Department concluded that referencing “reasonable efforts” would not promote clarity or consistency, as the term “reasonable efforts” is not in ICWA and arises from different laws (

e.g.,

the Adoption Assistance and Child Welfare Act of 1980, as modified by the Adoption and Safe Families Act (ASFA),

see

42 U.S.C. 670,

et seq.,

as well as State laws). Such reference is unnecessary because the definition in the final rule focuses on what actions are necessary to constitute active efforts.

The Department recognizes that what constitutes sufficient “active efforts” will vary from case-to-case, and the definition in the final rule retains State court discretion to consider the facts and circumstances of the particular case before it.

Comment:

Several commenters stated their support for the definition and examples of active efforts. Several commenters, including States and State-court judges, noted the term “active efforts” is in need of clarification. Commenters noted that, while agencies are required to provide active efforts, there has not been a clear understanding of the level and types of services required and the term is interpreted differently from State to State and even county to county. One commenter noted that it receives numerous questions about active efforts each year and published a guide on this topic but that a nationwide regulation would further clarify the requirements. Several commenters supported the language stating that active efforts are above and beyond the reasonable efforts standard for non-ICWA cases. One commenter stated that California courts have construed active efforts as “essentially equivalent to reasonable efforts to provide or offer reunification services to a non-ICWA case.” Some of these commenters requested even stronger language distinguishing the two. Other commenters opposed defining active efforts in relation to reasonable efforts. Commenters stated that BIA has no authority to determine how reasonable efforts and active efforts would compare and that comparing them raises equal protection concerns. One commenter stated that the term does not need a definition.

Response:

The proposed rule defined “active efforts” in a manner that compared it to “reasonable efforts” because many understand active efforts and reasonable efforts as relative to each other, where active efforts is higher on the continuum of efforts required and reasonable efforts is lower on that continuum.

See, e.g., In re Nicole B.,

927 A.2d 1194, 1206-07 (Md. Ct. Spec. App. 2007). However, as commenters pointed out, the terms are used in separate laws and are subject to separate analyses. The term “reasonable efforts” is not used in ICWA; rather, it is used in the Adoption Assistance and Child Welfare Act of 1980, as modified by the Adoption and Safe Families Act (ASFA).

See

42 U.S.C. 670,

et seq.

ASFA establishes “reasonable efforts” as a State responsibility in order to be eligible for Federal foster-care placement funding. Some State laws also utilize a “reasonable efforts” standard.

ICWA, however, requires “active efforts” prior to foster-care placement of or termination of parental rights to an Indian child, regardless of whether the agency is receiving Federal funding. Having considered the concerns of commenters with the use of the term “reasonable efforts” as a point of comparison, the Department has decided to delete reference to “reasonable efforts” from the definition of “active efforts” in the final rule. Such reference is unnecessary because the definition now focuses on the actions necessary to constitute active efforts, as affirmative, active, thorough, and timely efforts. Instead, the final rule provides additional examples and clarifications as to what constitutes active efforts.

Comment:

A commenter pointed out that the “active efforts” requirement in the Act applies only to the “Indian family” and not to the Tribal community.

Response:

The final rule deletes reference to “Tribal community” in the definition.

Comment:

A commenter noted that the legislative history of the “active efforts” provision demonstrates that Congress intended to require States to affirmatively provide Indian families with substantive services and not merely make the services available.

Response:

The Department agrees and the final rule's definition of “active efforts” reflects this.

Comment:

A few commenters suggested adding appointment of legal counsel for both parents and children as a requirement for active efforts.

Response:

Appointment of legal counsel does not clearly fall within the scope of remedial services and rehabilitative programs designed to prevent the breakup of the Indian family for which active efforts is required. 25 U.S.C. 1912(d). Further, 25 U.S.C. 1912(b) separately provides for appointment of counsel for the parent or Indian custodian in any case in which the court determines indigency.

Comment:

Many commenters supported the proposed examples of “active efforts” in the definition, one saying they will be “extremely helpful” for determining whether services comply with the higher standard. The Oregon Juvenile Court Improvement Program noted that many of the examples reinforce Oregon's document “Active Efforts Principles and Expectations.” A few commenters suggested clarifying that the list is not exhaustive. Some suggested requiring a minimum number of the items on the list to be met to reach the “active efforts” threshold, while others requested clarifying that not all the items are required to be met to reach the threshold. A few commenters suggested shortening and simplifying the list. Others suggested including in each item a requirement to work with the Tribe. Several commented on the specifics of each example of “active efforts” listed in the definition. Some suggested adding new examples.

Response:

The final rule simplifies the list somewhat by combining similar examples and clarifies that the list is not an exhaustive list of examples. The minimum actions required to meet the “active efforts” threshold will depend on unique circumstances of the case. The final rule also states, consistent with the BIA 1979 and 2015 Guidelines, that whenever possible, active efforts should be provided in partnership with the Indian child's Tribe, and should be provided in a manner consistent with the prevailing cultural and social conditions and way of life of the Indian child's Tribe. This practice is consistent with Congress' intent in ICWA that State child-custody proceedings better incorporate and consider Tribal values and culture. Further, as discussed above, culturally adapted treatment strategies have been shown to be more effective.

Comment:

A commenter stated that the definition of “active efforts” reveals an assumption that the child has had a connection with the Tribal community, by using the terms “maintain” and “reunite.” The commenter states that this assumption is imbedded in the Act, which suggests that a relationship with the Tribal community was already in existence, and so the Act should not apply to children raised outside their Tribal communities prior to removal; otherwise, the Act would force the child to assume a new cultural identity on the basis of ancestry alone.

Response:

The Act and the regulations require “active efforts” to prevent the breakup of the Indian child's family. Neither the text of the statute nor its legislative history suggests that this requirement is limited to circumstances where a State court determines that the Indian child has a sufficient pre-existing connection to a Tribal community. Indeed, Congress applied the “active efforts” requirement to Indian children residing outside of a reservation, and it can be presumed that Congress understood that for reasons of distance and age, some of these children may not have yet developed extensive connections to their Tribal community. Congress also found that State agencies and courts “have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families.” 25 U.S.C. 1901(5). In light of this, the Department finds that it would not comport with congressional intent to require State courts to assess an Indian child's connection with her Tribal community.

Nothing in the Act or these regulations forces the child to assume a new cultural identity or assume a relationship with a Tribe or Tribal community that was not pre-existing. ICWA applies only to Indian children who have a political relationship (either through their citizenship, or through the citizenship of a parent and their own eligibility for citizenship) with a federally recognized Indian Tribe.

2. “Agency”

The final rule defines “agency” as an organization that performs, or provides services to biological parents, foster parents, or adoptive parents to assist in, the administrative and social work necessary for foster, preadoptive, or adoptive placements. The definition includes non-profit, for-profit, or governmental organizations. This comports with the statute's broad language imposing requirements on “any party” seeking placement of a child or termination of parental rights.

See, e.g.

25 U.S.C. 1912 (a), (d).

Comment:

A few commenters stated that the definition should clarify that “agencies” are covered by the regulations even if they are not licensed by the State. One commenter stated that the definition should also include attorneys and others who participate in private placements, so that they will also be subjected to requirements for ICWA compliance.

Response:

The final rule updates the definition of “agency” to mean organizations including those who may assist in the administrative or social work aspects of seeking placement. An “agency” may also be assisting in the legal aspects of seeking placement, but the definition does not include attorneys or law firms, standing alone, because as used in the final rule, “agencies” are presumed to have some capacity to provide social services. Attorneys and others involved in court proceedings are addressed separately in various provisions in the final rule.

3. “Child-Custody Proceeding”

See

“Applicability” section below.

4. “Continued Custody” and “Custody”

The final rule makes two changes from the proposed rule to the definition of “continued custody,” in response to comments. First, it clarifies that physical and/or legal custody may be defined by applicable Tribal law or custom, or by State law. This comports with ICWA's recognition that custody may be defined by any of these sources.

See, e.g.,

25 U.S.C. 1903(6). Second, it clarifies that an Indian custodian may have continued custody, because the statute recognizes that Indian custodians may have legal or physical custody of an Indian child and are entitled to ICWA's statutory protections. The definition of “custody” did not substantively change from the proposed rule.

Comment:

A few commenters suggested adding “Indian custodian” in addition to “parent” in the definition of “continued custody.”

Response:

The final rule makes this change, as discussed above.

Comment:

Several commenters supported the “continued custody” definition as clarifying that parents who may never have had physical custody are nevertheless covered by ICWA if they had legal custody. A few commenters suggested clarifications in light of the Supreme Court's decision in

Adoptive Couple

Baby Girl,

133 S. Ct. 2552 (2013), that the father in that case did not have legal or physical custody. One commenter requested that the final rule add that the father has “continued custody,” even without physical or legal custody, unless he abandoned the child prior to birth.

Response:

The final rule retains the definition of “continued custody” as proposed, which includes custody the parent or Indian custodian “has or had at any point in the past.” It clarifies that the parent or custodian may have physical and/or legal custody under any applicable Tribal law or Tribal custom or State law. The definition is consistent with

Adoptive Couple

Baby Girl,

which determined under the facts of that case that the father never had custody. The Department finds that this definition is also most consistent with ICWA, which in other contexts defines legal custody as well as parental rights in reference to Tribal and State law.

See

25 U.S.C. 1903(6), (9).

Comment:

A few commenters stated that the definition should require a “preexisting state” of custody prior to the child-custody proceeding, or require custody for a certain period of time.

Response:

The final rule does not add the requested requirement for a “preexisting state” of custody because there are situations in which a parent could be considered to have had custody but lost it for some period of time prior to the child-custody proceeding, or may have had, at the time of the commencement of the proceeding, custody for only a brief period of time. There is no evidence that Congress intended temporary disruptions (

e.g.,

surrender of child to another caregiver for a period) not to be included in “continued custody.” The Department believes that including this requirement could permit evasion of ICWA's protections, since it could create incentives to disrupt a parent's custodial rights prior to initiating a child-custody proceeding.

Comment:

Some commenters requested that the definition emphasize the narrow holding of the Supreme Court in

Adoptive Couple

Baby Girl

as not applying to a parent that “at least had at some point in the past” custody of the child.

Response:

The proposed and final rule already defined “continued custody” to include custody a parent “had at any point in the past,” which is substantively the same as the language used by the Supreme Court in

Adoptive Couple

Baby Girl.

Comment:

Several commenters suggested adding provisions to “continued custody” allowing putative fathers to assert custodial rights.

Response:

Neither the statute nor the final rule directly addresses the ability of putative fathers to assert custodial

rights; in the final rule, custodial rights may be established under Tribal law or custom or State law.

Comment:

Several commenters supported the proposed definition of “custody” as including Tribal law or Tribal custom. One commenter requested adding that “continued custody,” like “custody,” is based on Tribal law or Tribal custom. Another commenter suggested adding that State law may only be used in the absence of applicable Tribal law or Tribal custom.

Response:

The final rule adds “under any applicable Tribal law or Tribal custom or State law” to the definition of “continued custody” to better parallel the definition of “custody.” The final rule does not establish an order of preference among Tribal law, Tribal custom, and State law because the final rule provides that custody may be established under any one of the three sources.

5. “Domicile”

The final rule provides a more complete description of how to determine domicile for an adult, to better comport with Federal common law. The rule's definition is consistent with the definition of domicile provided by Black's Law Dictionary, a standard legal reference resource. The final rule also changes the definition of domicile for an Indian child whose parents are not married to be the domicile of the Indian child's custodial parent, in keeping with legal authority on this point.

Comment:

With regard to the first part of the definition of “domicile,” addressing the domicile of “parents or any person over the age of 18,” a commenter suggested replacing “any person over the age of 18” with “Indian custodian.”

Response:

The final rule replaces “any person over the age of 18” with “Indian custodian” as suggested in this comment because the context in which the term “domicile” is used includes only parents or Indian custodians (children are addressed in another part of the definition).

Comment:

One commenter suggested that domicile should be defined by Tribal law or custom of the Indian child's Tribe, and that a Federal definition should apply only in the absence of such law or custom.

Response:

The U.S. Supreme Court found that Congress intended a uniform Federal law of domicile for ICWA.

See Miss. Band of Choctaw Indians

Holyfield,

490 U.S. 30, 44-47 (1989).

Comment:

Several commenters stated that the reliance on physical presence in the definition of domicile is too narrow. Some recommended changing the definition to the common-law definition of domicile. These commenters noted that the common-law definition would better consider persons who may leave the reservation temporarily (

e.g.,

to obtain education, pursue work, or enter the military) and that the court in

Holyfield

stated that “domicile” is not necessarily synonymous with “residence.” One commenter suggested changing “physical presence” to “was physically present” to account for this difference. A commenter stated that a person's intent to return should be the main focus.

Response:

The final rule adopts the commenters' suggestions by revising the definition of “domicile” to better reflect the common-law definition, which acknowledges that a person may reside in one place but be domiciled in another.

Comment:

With regard to the second part of the definition, addressing the domicile of the child, several commenters stated that, in the case of an Indian child whose parents are not married to each other, the domicile is not necessarily that of the Indian child's mother. These commenters pointed out that the father or a guardian may have custody of the child, and some noted that some Tribes are patriarchal and this definition would conflict with those Tribes' cultural traditions. Some stated that the domicile of the child in this case should instead be the domicile of the custodial parent with whom the child lives most often and if the child lives with neither parent, then the domicile should be that of the mother or the Indian child's Tribe. Others stated the domicile should be that of the custodial parent (or primary custodial parent), Indian custodian, or legal guardian.

Response:

The Supreme Court stated that a child born out of wedlock generally takes the domicile of his or her mother.

Holyfield,

490 U.S. at 43-48. This rests on an underlying assumption that the mother is the child's custodial parent. This may generally be true at the time of the birth of the child. The general rule, however, is that a minor has the same domicile as the parent with whom he lives.

See, e.g.

Restatement (Second) of Conflict of Laws 22 (Am. Law. Inst. 1971). As one State court recognized, where the father is the custodial parent, the child's domicile is not that of the mother but rather follows that of the custodial parent.

Tubridy

Iron Bear (In re S.S.),

657 NE.2d 935, 942 (Ill. 1995). Thus, the final rule accepts the suggestion that the child's domicile should be the custodial parent's domicile when the parents are unwed.

6. “Emergency Proceeding”

The statute treats emergency proceedings differently from other child-custody proceedings.

See

25 U.S.C. 1922. In response to comments that reflected a lack of clarity on this point, the final rule adds a definition of “emergency proceedings.” “Emergency proceedings” are defined as court actions involving emergency removals and emergency placements. These proceedings are distinct from other types of “child-custody proceedings” under the statute. While States use different terminology (

e.g.,

preliminary protective hearing, shelter hearing) for emergency hearings, the regulatory definition of emergency proceedings is intended to cover such proceedings as may necessary to prevent imminent physical damage or harm to the child.

See

“Emergency Proceedings” section below for more information and responses to comments.

7. “Extended Family Member”

This definition has not changed from the proposed rule, and tracks the statutory definition.

Comment:

A few commenters suggested expanding the definition of “extended family member” to include various other individuals (

e.g.,

great-grandparents, great-aunts, and great-uncles).

Response:

The definition of “extended family member” in the proposed rule and final rule matches the statutory definition. Additional categories of individuals may be included in the meaning of the term if the law or custom of the Indian child's Tribe includes them. “Extended family member” is not limited to Tribal citizens or Native individuals.

8. “Hearing”

See

“Applicability” section below.

9. “Imminent Physical Damage or Harm”

The final rule does not provide a definition of “imminent physical damage or harm.” The Department has determined that statutory phrase is clear and understandable as written, such that no further elaboration is necessary.

The Department has concluded that the definition it included in the proposed rule, “present or impending risk of serious bodily injury or death,” is too constrained and does not capture circumstances that Congress would have considered as presenting “imminent physical damage or harm.” Commenters noted that situations of sexual abuse,

domestic violence, or child labor exploitation could arguably be excluded by the proposed definition. The Department did not, however, intend that such situations would fall outside the scope of “imminent physical damage or harm.” Since the statutory phrase reflects endangerment of the child's health, safety, and welfare, not just bodily injury or death, the Department has decided not to use the proposed definition.

The “imminent physical damage or harm” standard applies only to emergency proceedings, which are not subject to the same procedural and substantive protections as other types of child-custody proceedings, as discussed in Section IV.H below. In using this standard, Congress established a high bar for emergency proceedings that occur without the full suite of protections in ICWA. There are circumstances in which it may be appropriate to provide services to the parent or initiate a child-custody proceeding with the attendant ICWA protections (

e.g.,

those in 25 U.S.C. 1912 and elsewhere in the statute), but removal or placement on an emergency basis is not appropriate. Thus, section 1922 and these rules require that any emergency proceeding must terminate immediately when the emergency proceeding is not necessary to prevent imminent physical damage or harm to the child. This standard is substantially similar to the emergency removal provisions of many states. See,

e.g.,

W. Va. Code 49-4-6-2 (2015); N.Y. Fam. Ct. Act 1024 (McKinney 2009); Idaho Code 16-1608 (2016); Texas Fam. Code 262.104 (West 2015); N.J. Stat. Ann. 9:6-8.29 (West. 2012); Va. Code Ann. 16.1-251 (2015), Cal. Welf. & Inst. Code 305 (West).

Comment:

Many commenters opposed the proposed definition of “imminent physical harm or damage” because they asserted:

• States should be able to define imminent harm in accordance with their State protection laws;

• The proposed definition is too narrow in omitting neglect and emotional or mental (psychological) harm and would preclude emergency measures to protect a child from these types of harms;

• By requiring “serious” bodily injury, the proposed definition would exclude physical harm such as domestic violence that does not rise to a major injury and exclude threatened physical harm (

e.g.,

present or impending sexual abuse, child labor exploitation, or misdemeanor assaults);

• The proposed definition would result in equal protection violations denying Indian children the same level of protections as non-Indian children because research shows that exposure to domestic violence produces significant and long-lasting harm to the child psychologically, even when the child does not himself experience physical injury; and

• The proposed definition would exclude some State and Federal crimes that would normally justify protection of the child.

Several other commenters supported the proposed definition of “imminent physical harm or damage,” to the extent it would apply to emergency situations. These commenters asserted:

• A narrow threshold for emergency removal is necessary because, in some jurisdictions, little more than being an Indian child on a reservation apparently constitutes “imminent physical damage or harm,” and the proposed definition would require a closer examination of whether the emergency removal was necessary;

• Not including minor physical harm or emotional harm is appropriate for emergency removal because a child experiencing those types of harm could be removed following the commencement of a child-custody proceeding rather than by emergency removal; and

• The proposed definition is in line with State laws that keep a child in his or her home unless the child is in need of immediate protection due to an imminent safety threat.

Even among commenters that supported the proposed definition, many had suggested changes, such as:

• Clarifying that situations like sexual abuse would be grounds for emergency removal;

• Including “serious emotional damage” only if the child displays specific symptoms such as severe anxiety, depression or withdrawal;

• Clarifying “imminent” rather than the degree of harm; and

• Clarifying that imminent physical harm or damage is not present when the implementation of a safety plan or intervention would otherwise protect the child while allowing them to remain in the home.

Response:

The final rule does not use the proposed definition of “imminent physical damage or harm” because the Department has concluded that the statutory phrase encapsulates a broader set of harms than was reflected in the proposed definition. The Department agrees with commenters that the phrase focuses on the child's health, safety, and welfare, and would include, for example, situations of sexual abuse, domestic violence, or child labor exploitation.

The Department also agrees with commenters who emphasized that the section 1922 language focuses on the imminence of the harm, because the immediacy of the threat is what allows the State to temporarily suspend the initiation of a full “child-custody proceeding” subject to ICWA. Where harm is not imminent, issues that might at some point in the future affect the Indian child's welfare may be addressed either without removal, or with a removal on a non-emergency basis (complying with the Act's section 1912 requirements). We also agree with commenters that being an Indian child on a reservation does not justify emergency removal; Congress used the standard of “imminent physical damage or harm” to guard against emergency removals where there is no imminent physical damage or harm.

Comment:

A few commenters stated that the only place “imminent physical damage or harm to a child” appears in ICWA is at section 1922, which addresses emergency removal only of children domiciled on a reservation, so it should not apply to State removal of children who are not domiciled on a reservation.

Response:

The final rule is based on the premise that the emergency removal or placement of an Indian child may be conducted under State law in order to keep the child safe.

See

FR § 23.113. 25 U.S.C. 1922 requires, however, that any emergency proceeding terminate immediately when such removal or placement is no longer necessary to prevent imminent physical damage or harm to the child. Both the legislative history and the decisions of multiple courts support the conclusion that this provision applies to emergency proceedings involving Indian children who are both domiciled off of the reservation and domiciled on the reservation, but temporarily off of the reservation.

See

H. Rep. No. 95-1386, at 25;