Vol. 81 Tuesday, No. 114 June 14, 2016

Part II

Department of the Interior

Bureau of Indian Affairs 25 CFR Part 23 Indian Child Welfare Act Proceedings; Final Rule

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DEPARTMENT OF THE INTERIOR 5. ‘‘Domicile’’ I. Improper Removal 6. ‘‘Emergency Proceeding’’ J. Transfer to Tribal Court Bureau of Indian Affairs 7. ‘‘Extended Family Member’’ 1. Petitions for Transfer of Proceeding 8. ‘‘Hearing’’ 2. Criteria for Ruling on Transfer 25 CFR Part 23 9. ‘‘Imminent Physical Damage or Harm’’ 3. Good Cause To Deny Transfer 10. ‘‘Indian Child’’ 4. What Happens When Petition for [K00103 12/13 A3A10; 134D0102DR– 11. ‘‘Indian Child’s Tribe’’ Transfer Is Made DS5A300000–DR.5A311.IA000113] 12. ‘‘Indian Custodian’’ K. Adjudication 13. ‘‘Parent’’ 1. Access to Reports and Records RIN 1076–AF25 14. ‘‘Reservation’’ 2. Standard of Evidence for Foster-Care 15. ‘‘Status Offense’’ Placement and Termination Indian Child Welfare Act Proceedings 16. ‘‘Tribal Court’’ a. Standard of Evidence for Foster-Care 17. ‘‘Upon Demand’’ Placement AGENCY: Bureau of Indian Affairs, 18. ‘‘Voluntary Placement,’’ ‘‘Voluntary b. Standard of Evidence for Termination Interior. Proceeding,’’ and ‘‘Involuntary c. Causal Relationship ACTION: Final rule. Proceeding’’ d. Single Factor 19. Suggested New Definitions 3. Qualified Expert Witness SUMMARY: This final rule adds a new a. ‘‘Best Interests’’ L. Voluntary Proceedings subpart to the Department of the b. Other Suggested Definitions 1. Applicability of ICWA to Voluntary Interior’s (Department) regulations C. Applicability Proceedings—In General implementing the Indian Child Welfare 1. ‘‘Child-Custody Proceeding’’ and 2. Applicability of Notice Requirements to ‘‘Hearing’’ Definitions Voluntary Proceedings Act (ICWA), to improve ICWA 2. Juvenile Delinquency Cases 3. Applicability of Placement Preferences implementation. The final rule 3. Existing Indian Family Exception to Voluntary Proceedings addresses requirements for State courts 4. Other Applicability Provisions 4. Applicability of Other ICWA Provisions in ensuring implementation of ICWA in D. Inquiry and Verification to Voluntary Proceedings Indian child-welfare proceedings and 1. How to Contact a Tribe 5. Applicability of Placements Where requirements for States to maintain 2. Inquiry Return is ‘‘Upon Demand’’ records under ICWA. 3. Treating Child as an ‘‘Indian Child’’ 6. Consent in Voluntary Proceedings Pending Verification 7. Consent Document Contents DATES: This rule is effective on 4. Verification From the Tribe 8. Withdrawal of Consent December 12, 2016. 5. Tribe Makes the Determination as to 9. Confidentiality and Anonymity in FOR FURTHER INFORMATION CONTACT: Ms. Whether a Child is a Member of the Voluntary Proceedings Elizabeth Appel, Office of Regulatory Tribe M. Dispositions Affairs & Collaborative Action—Indian E. Jurisdiction: Requirement To Dismiss 1. When Placement Preferences Apply Affairs, U.S. Department of the Interior, Action 2. What Placement Preferences Apply, 1849 C Street NW., MS 3642, F. Notice Generally 1. Notice, Generally 3. Placement Preferences in Adoptive Washington, DC 20240, (202) 273–4680; 2. Certified Mail v. Registered Mail Settings [email protected]. 3. Contents of Notice 4. Placement Preferences in Foster or SUPPLEMENTARY INFORMATION: 4. Notice of Change in Status Preadoptive Proceedings I. Executive Summary 5. Notice to More Than One Tribe 5. Good Cause To Depart From Placement A. Introduction 6. Notice for Each Proceeding Preferences B. Overview of Final Rule 7. Notice in Interstate Placements a. Support and Opposition for Limitations II. Background 8. Notice in Voluntary Proceedings on Good Cause A. Background Regarding Passage of ICWA G. Active Efforts b. Request of Parents as Good Cause B. Overview of ICWA’s Provisions 1. Applicability of Active Efforts c. Request of the Child as Good Cause C. Need for These Regulations a. Active Efforts To Verify Child’s Tribe d. Ordinary Bonding and Attachment D. The Department’s Implementation of b. Active Efforts To Avoid Breakup in e. Unavailability of Placement as Good ICWA Emergency Proceedings Cause III. Authority for Regulations c. Active Efforts To Avoid the Need to f. Other Suggestions Regarding Good Cause A. Statements Made in the 1979 Guidelines Remove the Child To Depart From Placement Preferences B. Comments Agreeing That Interior May d. Active Efforts To Establish Paternity 6. Placement Preferences Presumed To Be Issue a Binding Regulation e. Active Efforts To Apply for Tribal in the Child’s Best Interest C. Comments Disagreeing That the Membership N. Post-Trial Rights and Recordkeeping Department Has Authority To Issue a f. Active Efforts To Identify Preferred 1. Petition To Vacate Adoption Binding Regulation Placements 2. Who Can Make a Petition To Invalidate 1. Agency Expertise 2. Timing of Active Efforts an Action 2. Chevron Deference a. Active Efforts Begin Immediately and 3. Rights of Adult Adoptees 3. Primary Responsibility for Interpreting During Investigation 4. Data Collection the Act b. Time Limits for Active Efforts O. Effective Date and Severability 4. Tenth Amendment and Federalism 3. Documentation of Active Efforts P. Miscellaneous 5. Federalism Executive Order 4. Other Suggested Edits for Active Efforts 1. Purpose of Subpart 6. Change in Position From Statements H. Emergency Proceedings 2. Interaction With State Laws Made in 1979 1. Standard of Evidence for Emergency 3. Time Limits and Extensions 7. Timeliness Proceedings 4. Participation by Alternative Methods IV. Discussion of Rule and Comments 2. Placement Preferences in Emergency (Telephone, Videoconferencing, etc.) A. Public Comment and Tribal Proceedings 5. Adoptive Couple v. Baby Girl and Consultation Process 3. 30-Day Limit on Temporary Custody Tununak II 1. Fairness in Proposing the Rule 4. Emergency Proceedings—Timing of 6. Enforcement 2. Locations of Meetings/Consultations Notice and Requirements for Evidence 7. Unrecognized Tribes B. Definitions 5. Mandatory Dismissal of Emergency 8. Foster Homes 1. ‘‘Active Efforts’’ Proceedings 9. Other Miscellaneous 2. ‘‘Agency’’ 6. Emergency Proceedings Subsection-by- V. Summary of Final Rule and Changes From 3. ‘‘Child-Custody proceeding’’ Subsection Proposed Rule to Final Rule 4. ‘‘Continued Custody’’ and ‘‘Custody’’ 7. Emergency Proceedings—Miscellaneous VI. Procedural Requirements

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Note: This preamble uses the prefix ‘‘FR § ’’ where the Indian child resides creates of Indian families, and the reunification to denote regulatory sections in this final significant gaps in ICWA protections of Indian children with their families rule, and ‘‘PR § ’’ to denote regulatory and is contrary to the uniform minimum whenever possible, and reduces the sections in the proposed rule published Federal standards intended by Congress. need for disruption in placements. March 20, 2015 at 80 FR 14,480. The need for consistent minimum Timely notification of an Indian child’s Federal standards to protect Indian Tribe also ensures that Tribal I. Executive Summary children, families, and Tribes still exists government agencies have meaningful A. Introduction today. The special relationship between opportunities to provide assistance and This final rule promotes the uniform the United States and the Indian Tribes resources to the child and family. And application of Federal law designed to and their members upon which early implementation of ICWA’s protect Indian children, their parents, Congress based the statute continues in requirements conserves judicial and Indian Tribes. In conjunction with full force, as does the United States’ resources by reducing the need for direct interest, as trustee, in protecting this final rule, the Solicitor is issuing an delays, duplication, and appeals. Indian children who are members of or In particular, the final rule addresses M Opinion addressing the are eligible for membership in an Indian the following issues: implementation of the Indian Child Tribe. 25 U.S.C. 1901, 1901(2). Native • Applicability. The final rule Welfare Act by legislative rule. See M– American children, however, are still clarifies when ICWA applies, while 37037. Congress enacted the Indian disproportionately more likely to be making clear that there is no exception Child Welfare Act (ICWA), 25 U.S.C. removed from their homes and to applicability based on certain factors 1901 et seq., in 1978 to address an communities than other children. See, used by a minority of courts in defining ‘‘Indian child welfare crisis [ ] of e.g., Attorney General’s Advisory and applying the so-called ‘‘existing massive proportions’’: an estimated 25 Committee on American Indian and Indian family,’’ or EIF, exception. to 35 percent of all Indian children had Alaska Native Children Exposed to • Initial Inquiry. The final rule been separated from their families and Violence, Ending Violence So Children clarifies the steps involved in placed in adoptive homes, foster care, or Can Thrive 87 (Nov. 2014); National conducting a thorough inquiry at the institutions. H.R. Rep. No. 95–1386, at Council of Juvenile and Family Court beginning of child-custody proceedings 9 (1978), reprinted in 1978 U.S.C.C.A.N. Judges, Disproportionality Rates for as to whether the child is an ‘‘Indian 7530, 7531. Although the crisis flowed Children of Color in Foster Care, Fiscal child’’ subject to the Act. from multiple causes, Congress found Year 2013 (June 2015). In addition, • Emergency proceedings. that nontribal public and private some State court interpretations of Recognizing that emergency removal agencies had played a significant role, ICWA have essentially voided Federal and placements are sometimes required and that State agencies and courts had protections for groups of Indian to protect an Indian child’s safety and often failed to recognize the essential children to whom ICWA clearly applies. welfare, the final rule clarifies the tribal relations of Indian people and the And commenters provided numerous distinction between the requirements cultural and social standards prevailing anecdotal accounts where Indian for emergency proceedings and other in Indian communities and families. 25 children were unnecessarily removed child-custody proceedings involving U.S.C. 1901(4)–(5). To address this from their families and placed in non- Indian children and includes provisions failure, ICWA establishes minimum Indian settings; where the rights of that help to ensure that emergency Federal standards for the removal of Indian children, their parents, or their removal and placements are as short as Indian children from their families and Tribes were not protected; or where possible, and that, when necessary, the placement of these children in foster significant delays occurred in Indian proceedings subject to the full suite of or adoptive homes, and confirms Tribal child-custody proceedings due to ICWA protections are promptly jurisdiction over child-custody disputes or uncertainty about the initiated. proceedings involving Indian children. interpretation of the Federal law. • Notice. The final rule describes 25 U.S.C. 1902. uniform requirements for prompt notice B. Overview of Final Rule Since its passage in 1978, ICWA has to parents and Tribes in involuntary provided important rights and The final rule updates definitions and proceedings to facilitate compliance protections for Indian families, and has notice provisions in the existing rule with statutory requirements. helped stem the widespread removal of and adds a new subpart I to 25 CFR part • Transfer. The final rule clarifies the Indian children from their families and 23 to address ICWA implementation by requirement that a State court determine Tribes. State legislatures, courts, and State courts. It promotes nationwide whether the State or Tribe has agencies have sought to interpret and uniformity and provides clarity to the jurisdiction and, where jurisdiction is implement this Federal law, and many minimum Federal standards established concurrent, establishes standards to States should be applauded for their by the statute. In many instances, the guide the determination whether good affirmative efforts and support of the standards in this final rule reflect State cause exists to deny transfer (including policies animating ICWA. interpretations and best practices, as factors that cannot properly be However, the Department has found reflected in State court decisions, State considered) and addresses transfer of that implementation and interpretation laws implementing ICWA, or State proceedings to Tribal court. of the Act has been inconsistent across guidance documents. The rule • Qualified expert witnesses. The States and sometimes can vary greatly provisions also reflect comments from final rule provides interpretation of the even within a State. This has led to organizations and individuals that serve term ‘‘qualified expert witness.’’ significant variation in applying ICWA’s children and families (including, in • Placement preferences. The final statutory terms and protections. This particular, Indian children) and have rule clarifies when and what placement variation means that an Indian child substantial expertise in child-welfare preferences apply in foster care, pre- and her parents in one State can receive practices. adoptive, and adoptive placements, different rights and protections under The final rule promotes compliance provides presumptive standards for Federal law than an Indian child and with ICWA from the earliest stages of a what may constitute good cause to her parents in another State. This child-welfare proceeding. Early depart from the placement preferences, disparate application of ICWA based on compliance promotes the maintenance and prohibits courts from considering

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certain factors as the basis for departure mind that Congress enacted ICWA in were most often placed in non-Indian from placement preferences. part to address a concern that State foster care and adoptive homes. AIPRC • Voluntary proceedings. The final courts were exercising their discretion Report at 78–87. These separations rule clarifies certain aspects of ICWA’s inappropriately, to the detriment of contributed to a number of problems, applicability to voluntary proceedings, Indian children, parents, and Tribes. In including the erosion of a generation of including addressing the need to some cases, the Department determined Indians from Tribal communities, loss determine whether a child is an ‘‘Indian that particular standards or practices are of Indian traditions and culture, and child’’ in voluntary proceedings and better suited to guidelines; the long-term emotional effects on Indian specifying the requirements for Department anticipates issuing updated children caused by loss of their Indian obtaining consent. guidelines prior to the effective date of identity. See 1974 Senate Hearing at 1– • Information, recordkeeping, and this rule (180 days from issuance). 2, 45–51 (statements of Sen. James other rights. The final rule addresses the These considerations are discussed Abourezk, Chairman, Subcomm. on rights of adult adoptees to information further in the section-by-section Indian Affairs and Dr. Joseph and sets out what records States and the analysis below. Westermeyer, Dep’t of Psychiatry, Secretary must maintain. University of Minn.). The Department carefully considered II. Background Congress found that removal of the comments on the proposed rule and A. Background Regarding Passage of children and unnecessary termination of made changes responsive to those ICWA parental rights were utilized to separate comments. The reasons for the changes Congress enacted ICWA in 1978 to Indian children from their Indian are described in the section-by-section address the policies and practices that communities. The four leading factors analysis below. In particular, while the resulted in the ‘‘wholesale separation of contributing to the high rates of Indian proposed rule would have been directed Indian children from their families.’’ child removal were a lack of culturally to both State courts and agencies, the See H.R. Rep. No. 95–1386, at 9. After competent State child-welfare standards Department has focused the final rule several years of investigation, Congress for assessing the fitness of Indian on the standards to be applied in State- had found that an alarmingly high court proceedings. Most ICWA families; systematic due-process percentage of Indian families [were] provisions address what standards State violations against both Indian children broken up by the removal, often courts must apply before they take and their parents during child-custody unwarranted, of their children from actions such as exercising jurisdiction procedures; economic incentives them by nontribal public and private over an Indian child, ordering the favoring removal of Indian children agencies. 25 U.S.C. 1901(4). The removal of an Indian child from her from their families and communities; congressional investigation, which parent, or ordering the placement of the and social conditions in Indian country. resulted in hundreds of pages of Indian child in an adoptive home. The H.R. Rep. No. 95–1386, at 10–12. legislative testimony compiled over the final rule follows ICWA in this regard. Congress also found that many of course of four years of hearings, Further, State courts are familiar with these problems arose from State actions, deliberation, and debate, revealed ‘‘the applying Federal law to the cases before i.e., that the States, exercising their wholesale separation of Indian children them. Several ICWA provisions do recognized jurisdiction over Indian from their families.’’ 1 H.R. Rep. No. 95– apply, either directly or indirectly, to child-custody proceedings through 1386, at 9. The empirical and anecdotal State and private agencies, see, e.g., 25 administrative and judicial bodies, have evidence showed that Indian children U.S.C. 1915(c); id. 1922; see also id. often failed to recognize the essential were separated from their families at 1912(a). Nothing in this rule alters these tribal relations of Indian people and the significantly higher rates than non- obligations. And agencies need to be cultural and social standards prevailing Indian children. In some States, alert to the standards identified in the in Indian communities and families. 25 between 25 and 35 percent of Indian final rule, since these will determine U.S.C. 1901(5). The standards used by children were living in foster care, what a court will require with respect to State and private child-welfare agencies adoptive care, or institutions. Id. Indian issues like notice to parents and Tribes to assess Indian parental fitness children removed from their homes (FR § 23.111), emergency proceedings promoted unrealistic non-Indian (FR § 23.113), active efforts (FR socioeconomic norms and failed to 1 See Problems that American Indian Families § 23.120), and placement preferences Face in Raising Their Children and How These account for legitimate cultural (FR § 23.129–132). Problems Are Affected by Federal Action or differences in Indian families. Time and The Department is cognizant that Inaction: Hearing Before the Subcomm. on Indian again, ‘‘social workers, ignorant of child-custody matters address some of Affairs of the S. Comm. on Interior and Insular Indian cultural values and social norms, Affairs, 93rd Cong. (1974) (hereinafter, ‘‘1974 the most fundamental elements of Senate Hearing’’); Task Force Four: Federal, State, ma[d]e decisions that [we]re wholly human life—children, familial ties, and Tribal Jurisdiction, American Indian Policy inappropriate in the context of Indian identity, and community. They often Review Commission Task Force Four, Report on family life and so they frequently involve circumstances unique to the Federal, State, and Tribal Jurisdiction (1976) discover[ed] neglect or abandonment (hereinafter ‘‘AIPRC Report’’); 123 Cong. Rec. parties before the court and may require 21042–44 (June 27, 1977); To Establish Standards where none exist[ed].’’ H.R. Rep. No. difficult and sometimes heart- for the Placement of Indian Children in Foster or 95–1386, at 10. For example, Indian wrenching decisions. The Department is Adoptive Homes, to Prevent the Breakup of Indian parents might leave their children in the Families, and for Other Purposes: Hearing on S. also fully aware of the paramount 1214 Before the S. Select Comm. on Indian Affairs, care of extended-family members, importance of Indian children to their 95th Cong. (1977) (hereinafter ‘‘1977 Senate sometimes for long periods of time. immediate and extended families, their Hearing’’); S. Rep. No. 95–597 (1977); 123 Cong. Social workers untutored in the ways of communities, and their Tribes. In the Rec. 37223–26 (Nov. 4, 1977); To Establish Indian family life assumed leaving Standards for the Placement of Indian Children in final rule, the Department carefully Foster or Adoptive Homes, To Prevent the Breakup children in the care of anyone outside balanced the need for more uniformity of Indian Families, and for Other Purposes: Hearing the nuclear family amounted to neglect in the application of Federal law with on S. 1214 Before the Subcomm. On Indian Affairs and grounds for terminating parental the legitimate need for State courts to and Public Lands of the H. Comm. on Interior and rights. Yet, the House Report noted, this Insular Affairs, 95th Cong. 29 (1978) (hereinafter, exercise discretion over how to apply ‘‘1978 House Hearing’’); H.R. Rep. No. 95–1386 is an accepted practice for certain the law to each case, while keeping in (1978); 124 Cong. Rec. H38101–12 (1978). Tribes. Id.

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Non-Indian socioeconomic values that proceedings, the Indian parents and children, the only real means for the State agencies and judges applied in the children rarely were represented by transmission of the tribal heritage, are to child-welfare context similarly were counsel and sometimes received little if be raised in non-Indian homes and found to not account for the difference any notice of the proceeding, and denied exposure to the ways of their in family structure and child-rearing termination of parental rights was people.’’ Id. at 157. Thus, in addition to practice in Indian communities. Id. seldom supported by expert testimony. protecting individual Indian children Layered together with cultural bias, the 1974 Senate Hearing at 67–68; H.R. Rep. and families, Congress was also result, the House Report concluded, was No. 95–1386, at 11. Rather than helping concerned about preserving the integrity unequal and incongruent application of Indian parents correct parenting issues, of Tribes as self-governing, sovereign child-welfare standards for Indian or acknowledging that the alleged entities and ensuring that Tribes could families. Id. For example, parental problems were the result of cultural and survive both culturally and politically. alcohol abuse was one of the most socioeconomic differences, social See 124 Cong. Rec. H38,102. frequently advanced reasons for workers claimed removal was in the removing Indian children from their child’s best interest. 1974 Senate B. Overview of ICWA’s Provisions parents; however, in areas where Hearing at 62. In light of the information presented Indians and non-Indians had similar Congress understood that these issues about State child-custody practices for rates of problem drinking, alcohol abuse significantly impacted children who Indian children, Congress passed ICWA was rarely used as grounds to remove lived off of reservations, not just on- to ‘‘protect the rights of the Indian child children from non-Indian parents. Id. reservation children. Congress was as an Indian and the rights of the Indian Congress heard testimony that concerned with the effect of the removal community and tribe in retaining its removing Indian children from their of Indian children ‘‘whose families live children in its society.’’ H.R. Rep. No. families had become a regular, in urban areas or with rural 95–1386, at 23. Congress further encouraged practice. Congress came to nonrecognized tribes,’’ noting that there declared that it is the policy of this understand that ‘‘agencies established to were approximately 35,000 such Nation to protect the best interests of place children have an incentive to find children in foster care, adoptive homes, Indian children and to promote the children to place.’’ Id. at 11. Indian or institutions. 124 Cong. Rec. H38102; stability and security of Indian tribes leaders alleged that federally subsidized 123 Cong. Rec. H21043. In the Final and families. 25 U.S.C. 1902. And foster care homes encouraged non- Report of the American Indian Policy although Congress described ‘‘the Indians to take in Indian children to Review Commission, which was failure of State officials, agencies, and supplement their incomes with foster included as part of the Senate Report on procedures to take into account the care payments, and that some non- ICWA, the Commission recommended special problems and circumstances of Indian families sought to foster Indian legislation addressing the fact that, Indian families and the legitimate children to gain access to the child’s because ‘‘[m]any Indian families move interest of the Indian tribe in preserving Federal trust account. See id.; See also back and forth from a reservation and protecting the Indian family as the 1974 Senate Hearing at 118. While dwelling to border communities or even wellspring of its own future,’’ H.R. Rep. economic incentives encouraged the to distant communities, depending on No. 95–1386, at 19, the legislature removal of Indian children, the employment and educational carefully considered the traditional role economic conditions in Indian country opportunities,’’ problems could arise of the States in the arena of child prevented Tribes from providing their when Tribal and State courts offered welfare outside Indian reservations, and own foster-care facilities and certified competing child-custody crafted a statute that would balance the adoptive parents. Poverty and determinations, and that legislation interests of the United States, the substandard housing were prolific on therefore had to address situations individual States, Indian Tribes, and reservations, and obtaining State foster- where ‘‘an Indian child is not domiciled Indians, noting: care licenses required a standard of on a reservation and [is] subject to the While the committee does not feel living that was often out of reach in jurisdiction of non-Indian authorities.’’ Indian communities. Otherwise loving S. Rep. No. 95–597, at 51–52 (1977). that it is necessary or desirable to oust and supportive Indian families were Congress further recognized that the the States of their traditional accordingly prevented from becoming ‘‘wholesale removal of [Tribal] children jurisdiction over Indian children falling foster parents, which promoted the by nontribal government and private within their geographic limits, it does placement of Indian children in non- agencies constitutes a serious threat to feel the need to establish minimum Indian homes away from their Tribes. [Tribes’] existence as on-going, self- Federal standards and procedural See H.R. Rep. No. 95–1386, at 11. governing communities,’’ and that the safeguards in State Indian child-custody In addition, State procedures for ‘‘future and integrity of Indian tribes proceedings designed to protect the removing Indian children from their and Indian families are in danger rights of the child as an Indian, the natural homes commonly violated due because of this crisis.’’ 124 Cong. Rec. Indian family and the Indian tribe. process. Social workers sometimes H38103. As one Tribal representative H.R. Rep. No. 95–1386, at 19. obtained ‘‘voluntary’’ parental-rights testified before Congress, ‘‘[t]he ultimate ICWA therefore applies to ‘‘child- waivers to gain access to Indian preservation and continuation of custody proceedings,’’ defined as foster- children using coercive and deceitful [Tribal] cultures depends on our care placements, terminations of measures. 1974 Senate Hearing at 95. children and their proper growth and parental rights, and pre-adoptive and Sometimes Indian parents with little development.’’ See 1977 Senate Hearing adoptive placements, involving an education, reading comprehension, and at 169. Commenters on the proposed ‘‘Indian child,’’ defined as any understanding of English signed legislation also noted that, because unmarried person who is under age ‘‘voluntary’’ waivers without knowing ‘‘[p]robably in no area is it more eighteen and either is: (a) A member of what rights they were forfeiting. H.R. important that tribal sovereignty be an Indian tribe; or (b) is eligible for Rep. No. 95–1386, at 11. Moreover, State respected than in an area as socially and membership in an Indian tribe and is courts failed to protect the rights of culturally determinative as family the biological child of a member of an Indian children and Indian parents. For relationships,’’ the ‘‘chances of Indian Indian tribe. 25 U.S.C. 1903. In such example, in involuntary removal survival are significantly reduced if our proceedings, Congress accorded Tribes

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‘‘numerous prerogatives . . . through compliance-icwa.pdf. Perhaps the most many of the problems Congress the ICWA’s substantive provisions . . . noted example is the ‘‘existing Indian intended to address by enacting ICWA as a means of protecting not only the family,’’ or EIF, exception, under which persist today. interests of individual Indian children some State courts first determine the The Department’s current nonbinding and their families, but also of the tribes ‘‘Indian-ness’’ of the child and family guidelines are insufficient to fully themselves.’’ Miss. Band of Choctaw before applying the Act. As a result, implement Congress’s goal of Indians v. Holyfield, 490 U.S. 30, 49 children who meet the statutory nationwide protections for Indian (1989). In addition, ICWA provides definition of ‘‘Indian child’’ and their children, parents, and Tribes. See 44 FR important procedural and substantive parents are denied the protections that at 67,584–95. While State courts will standards to be followed in State- Congress established by Federal law. sometimes defer to the guidelines in administered proceedings concerning This exception to the application of ICWA cases (see In re Jack C., 122 Cal. possible removal of an Indian child ICWA was created by some State courts, Rptr. 3d 6, 13–14 (Cal. Ct. App. 2011); from her family. See, e.g., 25 U.S.C. and has no basis in ICWA’s text or In the Interest of Tavian B., 874 N.W.2d 1912(d) (requiring provision of ‘‘active purpose. Currently, the Department has 456, 460 (Neb. 2016)), State courts efforts’’ to prevent the breakup of the identified State-court cases applying frequently characterize the guidelines as Indian family); id. 1912(e)–(f) (requiring this exception in a few states while lacking the force of law and conclude specified burdens of proof and expert other State courts have rejected the that they may depart from the testimony regarding potential damage to exception. See, e.g., Thompson v. guidelines as they see fit. See, e.g.,Gila child resulting from continued custody Fairfax Cty. Dep’t of Family Servs., 747 River Indian Cmty. v. Dep’t of Child by parent, before foster-care placement SE.2d 838, 847–48 (Va. Ct. App. 2013) Safety, 363 P.3d 148, 153 (Ariz. Ct. App. or termination of parental rights may be (collecting cases); In re Alexandria P., 2015). ordered). 176 Cal. Rptr. 3d 468, 484–85 (Cal. Ct. These State-specific determinations The ‘‘most important substantive App. 2014) (noting split across about the meaning of key terms in the requirement imposed on state courts’’ California jurisdictions). The question Federal law will continue absent a by ICWA is the placement preference for whether an Indian child, her parents, legislative rule, with potentially any adoptive placement of an Indian and her Tribe will receive the Federal devastating consequences for the child. Holyfield, 490 U.S. at 36–37. In protections to which they are entitled children, families, and Tribes that ICWA any adoptive placement of an Indian must be uniform across the Nation, as was designed to protect. Consider a child under State law, ICWA requires Congress mandated. child who is a Tribal citizen and who that a preference shall be given, in the lives with his mother, who is also a absence of good cause to the contrary, This type of conflicting State-level Tribal citizen. The mother and child to a placement with (1) a member of the statutory interpretation can lead to live far from their Tribe’s reservation child’s extended family (regardless of arbitrary outcomes, and can threaten the because of her work, and they are not whether they are Tribal citizens); (2) rights that the statute was intended to able to regularly participate in their other members of the Indian child’s protect. For example, in Holyfield, the Tribe’s social, cultural, or political Tribe; or (3) other Indian families. 25 Court concluded that the term events. If the State social-services U.S.C. 1915(a). ICWA requires similar ‘‘domicile’’ in ICWA must have a agency seeks to remove the child from placement preferences for pre-adoptive uniform Federal meaning, because the mother and initiates a child-custody placement and foster-care placement. 25 otherwise parties or agencies could proceeding, the application of ICWA to U.S.C. 1915(a)–(b). These preferences avoid ICWA’s application ‘‘merely by that proceeding—which clearly involves reflect ‘‘Federal policy that, where transporting [the child] across state an ‘‘Indian child’’—will depend on possible, an Indian child should remain lines.’’ 490 U.S. at 46. State courts also whether that State court has accepted in the Indian community.’’ Holyfield, differ as to what constitutes ‘‘good the existing Indian family exception. 490 U.S. at 36–37 (internal citations cause’’ for departing from ICWA’s child Likewise, even if the court agrees that omitted). placement preferences, weighing a ICWA applies, the actions taken to variety of different factors when making provide remedial and rehabilitative C. Need for These Regulations the determination. See, e.g., In re A.J.S., programs to the family will be uncertain Although the Department initially 204 P.3d 543, 551 (Kan. 2009); In re because there is no uniform hoped that binding regulations would Adoption of F.H., 851 P.2d 1361, 1363– interpretation of what constitutes not be ‘‘necessary to carry out the Act,’’ 64 (Alaska 1993); In re Adoption of M., ‘‘active efforts’’ under ICWA. This type see 44 FR 67,584 (Nov. 23, 1979), a third 832 P.2d 518, 522 (Wash. 1992). States of variation was not intended by of a century of experience has are also inconsistent as to how to Congress and actively undermines the confirmed the need for more uniformity demonstrate sufficient ‘‘active efforts’’ purposes of the Act. in the interpretation and application of to keep a family intact. See State ex rel. Need for Protections for Tribal this important Federal law. C.D. v. State, 200 P.3d 194, 205 (Utah Citizens Living Outside Indian Country. Need for Uniform Federal Standard. Ct. App. 2008) (noting State-by-State The need for more uniform application For decades, various State courts and disagreement over what qualifies as of ICWA in State courts is reinforced by agencies have interpreted the Act in ‘‘active efforts’’). In other instances, the fact that approximately 78% of different, and sometimes conflicting, State courts have simply ignored ICWA Native Americans live outside of Indian ways. This has resulted in different requirements outright. Oglala Sioux country,2 where judges may be less standards being applied to ICWA Tribe & Rosebud Sioux Tribe v. Van familiar with ICWA requirements adjudications across the United States, Hunnik, 100 F. Supp. 3d 749, 754 generally, or where a Tribe may be less contrary to Congress’s intent. See (D.S.D. 2015) (finding that the State had Holyfield, 490 U.S. at 43–46; see also 25 ‘‘developed and implemented policies 2 See United States Census Bureau, Fact for U.S.C. 1902; H.R. Rep. No. 95–1386, at and procedures for the removal of Features: American Indian and Alaska Native 19; see generally Casey Family Indian children from their parents’ Heritage Month: November 2012 (Oct. 25, 2012), https://www.census.gov/newsroom/releases/ Programs, Indian Child Welfare Act: custody in violation of the mandates of archives/facts_for_features_special_editions/cb12- Measuring Compliance (2015), the Indian Child Welfare Act’’). The ff22.html (summary files for 2015 are not yet www.casey.org/media/measuring- result of these inconsistencies is that available).

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likely to find out about custody phenomenon; ICWA itself was enacted over-simplifies the nature of Indian adjudications involving their citizens. with Congress’s awareness that many status. Tribes have a wide variety of Some commenters have pointed to the Indians live off-reservation. See 1978 citizenship-eligibility requirements. For large number of Tribal citizens living House Hearings at 103; H.R. Rep. No. example, the Jamestown S’Klallam Tribe off-reservation as proof that off- 95–1386, at 15. The fact that an Indian requires the applicant to produce reservation Indians have made a does not live on a reservation is not ‘‘documentary evidence such as a conscious choice to distance themselves evidence of disassociation with his or notarized paternity affidavit showing from their Tribe and its culture, and that her Tribe. In fact, citizens of many the name of a parent through whom ICWA’s protections are unnecessary. Tribes do not have the option to live on eligibility for citizenship is claimed.’’ They have accordingly questioned the reservation land, as over 40 percent of Jamestown S’Klallam Tribe Tribal Code need for a legislative rule, based on the Tribes have no reservation land. § 4.02.04(C)—Applications for assumption that off-reservation Indians Second, the comments ignore the fact Enrollment. Other Tribes include blood- do not want the Federal protections that that, regardless of geographic location of quantum requirements. For example, accompany their status as Indians. a Tribal citizen, Tribal citizenship (aka the White Mountain Apache Tribe These comments misapprehend the Tribal membership) is voluntary and requires the applicant to be at least one reasons for high off-reservation Indian typically requires an affirmative act by fourth (1/4) degree White Mountain populations and the nature of Tribal the enrollee or her parent. Tribal laws Apache blood. See White Mountain citizenship generally, and do not generally include provisions requiring Apache Constitution, Article II, sec. 1— diminish the need for the final rule. the parent or legal guardian of a minor Membership. Federal courts have First, the fact that many Indians live off- to apply for Tribal citizenship on behalf repeatedly recognized that determining reservation is, in part, a result of past, of the child. See, e.g., Jamestown citizenship (membership) requirements now-repudiated Federal policies S’Klallam Tribe Tribal Code is a sovereign Tribal function. See, e.g., encouraging Indian assimilation with § 4.02.04(A)—Applications for Santa Clara Pueblo v. Martinez, 436 non-Indians and, in some cases, Enrollment. Tribes also often require an U.S. 49, 72 n.32 (1978) (‘‘A tribe’s right terminating Tribes outright. For affirmative act by the individual seeking to define its own membership for tribal example, Congress passed the Indian to become a Tribal citizen, such as the purposes has long been recognized as General Allotment Act, 24 Stat. 388, filing of an application. See, e.g., White central to its existence as an codified at 25 U.S.C. 331 (1887) Mountain Apache Enrollment Code, independent political community.’’); (repealed), which authorized the United Sec. 1–401—Application Form: Filing. Montgomery v. Flandreau Santee Sioux States to allot and sell Tribal lands to As ICWA is limited to children who are Tribe, 905 F. Supp. 740, 746 (D.S.D. non-Indians and take them out of trust either enrolled in a Tribe or are eligible 1995) (‘‘Giving deference to the Tribe’s status. The purpose of the Act was to for enrollment and have a parent who is right as a sovereign to determine its own ‘‘encourage individual land ownership an enrolled member, that status membership, the Court holds that it and, hopefully, eventual assimilation inherently demonstrates an ongoing lacks subject matter jurisdiction to into the larger society,’’ Bugenig v. Tribal affiliation even among off- determine whether any plaintiffs were Hoopa Valley Tribe, 266 F.3d 1201, reservation Indians. wrongfully denied enrollment in the 1205 (9th Cir. 2001), and to ‘‘promot[e] Rather than simply moving off- Tribe.’’); In re Adoption of C.D.K., 629 interaction between the races and . . . reservation, those enrolled Tribal F. Supp. 2d 1258, 1262 (D. Utah 2009) encourage[e] Indians to adopt white citizens who do want to renounce their (holding that ‘‘the Indian tribes’ ways,’’ Mattz v. Arnett, 412 U.S. 481, affiliation with a Tribe may voluntarily ‘inherent power to determine tribal 496 (1973). Many Indian lands relinquish their citizenship. Tribal membership’ entitles determinations of subsequently passed out of Tribal governing documents often include membership by Indian tribes to great control, which often led to Tribal provisions allowing adult citizens to deference’’). The act of fulfilling Tribal citizens dispersing from their relinquish Tribal citizenship, sometimes citizenship requirements is all that is reservations. also requiring a notarized or witnessed necessary to demonstrate Tribal Likewise, during the so-called written statement. See, e.g., Jamestown affiliation, and thus qualify as an ‘‘termination era’’ of the 1950s, Congress S’Klallam Tribe Tribal Code ‘‘Indian’’ or ‘‘Indian child’’ under passed a series of acts severing its trust § 4.04.01(C)—Loss of Tribal Citizenship; ICWA. relationship with more than 100 Tribes. White Mountain Apache Enrollment These types of objections, which are Terminated Tribes lost not only their Code Sec. 1–702—Relinquishment. based on fundamental land base but also myriad Federal These procedures, and not an misunderstandings of Indian law, services previously arising from the individual’s geographic location, are the history, and social and cultural life, trust relationship, including education, proper determinant of whether an actually demonstrate the need for a health care, housing, and emergency individual retains an ongoing political legislative rule. Too often, State courts welfare. See Sioux Tribe of Indians v. affiliation with a Tribe (both generally are swayed by these types of arguments United States, 7 Cl. Ct. 468, 478 n.8 (Cl. and for the purposes of the ICWA and use the leeway afforded by the lack Ct. 1985) (describing the termination placement preferences). of regulations to craft ad hoc policy). Lacking these basic services, Commenters who raised this point ‘‘exceptions’’ to ICWA. A legislative rule which often did not otherwise exist in also argued that a legislative rule would is necessary to support ICWA’s rural Tribal communities, many Indians continue to apply Tribal placement underlying purpose and to address were forced to move to urban areas. And preferences to individuals who have those areas where a lack of binding in 1956, the Relocation Act was passed low Indian blood quantum. Several guidance has resulted in inconsistent with funds to support the voluntary noted that the Indian child in Adoptive implementation and noncompliance relocation of any young adult Indian Couple v. Baby Girl, 133 S. Ct. 2552 with the statute. willing to move from on or near a (2013), purportedly was 3/256 Cherokee Continued Need for ICWA reservation to a selected urban center. by blood, and questioned why ICWA Protections. ICWA’s requirements Act of Aug. 3, 1956, Public Law 84–959, should apply to such individuals, remain vitally important today. 70 Stat. 986. Thus, today’s off- particularly when they live off- Although ICWA has helped to prevent reservation population is not a new reservation. This argument mistakes and the wholesale separation of Tribal

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children from their families in many Tribes and Indian organizations for promoting uniform application of ICWA regions of the United States, Indian Indian child and family programs. 44 FR across the country, along with many of families continue to be broken up by the 45096 (Jul. 24, 1979) (codified at 25 CFR the other reasons discussed above why removal of their children by non-Tribal part 23). In January 1994, the ICWA regulations are needed. public and private agencies. Department revised its ICWA Recognizing that need, the Department Nationwide, based on 2013 data, Native regulations to convert the competitive- began a notice-and-comment process to American children are represented in grant process for Tribes to a promulgate formal ICWA regulations. State foster care at a rate 2.5 times their noncompetitive funding mechanism, The Department issued a proposed rule presence in the general population. See while continuing the competitive award on March 20, 2015 that would National Council of Juvenile and Family system for Indian organizations. See 59 ‘‘incorporate many of the changes made Court Judges, Disproportionality Rates FR 2248 (Jan. 13, 1994). to the recently revised guidelines into for Children of Color in Foster Care tbl. In 1979, the Department published regulations, establishing the 1 (June 2015). This disparity has recommended guidelines for Indian Department’s interpretation of ICWA as increased since 2000. Id. (showing child-custody proceedings in State a binding interpretation to ensure disproportionality rate of 1.5 in 2000). courts. 44 FR 24000 (Apr. 23, 1979) consistency in implementation of ICWA In some States, including numerous (proposed guidelines); 44 FR 32,294 across all States.’’ 80 FR 14480, 14481 States with significant Indian (Jun. 5, 1979) (seeking public comment); (Mar. 20, 2015). populations, Native American children 44 FR 67584 (final guidelines). Several As part of its process collecting input are represented in State foster-care commenters remarked then that the on the proposed regulations, Interior systems at rates as high as 14.8 times Department had the authority to issue held five public hearings and five their presence in the general population regulations and should do so. The Tribal-consultation sessions across the of that State. Id. While this Department declined to issue country, as well as one public hearing disproportionate overrepresentation of regulations and instead revised its and one Tribal consultation by Native American children in the foster- recommended guidelines and published teleconference. Public hearings and care system likely has multiple causes, them in final form in November 1979. Tribal consultations were held on April it nonetheless supports the need for this 44 FR 67584. 22, 2015, in Portland Oregon; April 23, rule. More recently, the Department 2015, in Rapid City, South Dakota; May Through numerous statutory determined that it may be appropriate 5, 2015, in Albuquerque, New Mexico; provisions, ICWA helps ensure that and necessary to promulgate additional May 7, 2015, in Prior Lake, Minnesota; State courts incorporate Indian social and updated rules interpreting ICWA May 11 and 12, 2015, by teleconference; and cultural standards into decision- and providing uniform standards for and May 14, 2015, in Tulsa, Oklahoma. making that affects Indian children. For State courts to follow in applying the All sessions were transcribed. In example, section 1915 requires foster- Federal law. In 2014, the Department addition to oral comments, the care and adoptive placement preference invited public comments to determine Department received over 2,100 written be given to members of the child’s whether to update its guidelines to comments. extended family. This requirement address inconsistencies in State-level After the public-comment period comports with findings that Tribal ICWA implementation that had arisen closed on May 19, 2015, the Department citizens tend to value extended family since 1979 and, if so, what changes reviewed comments received and, more than the Euro-American model, should be made. The Department held where appropriate, made changes to the often having several generations of several listening sessions, including proposed rule in response. This final family and aunts and uncles sessions with representatives of rule reflects the input of all comments participating in primary child-rearing federally recognized Indian Tribes, received during the public-comment activities. See, e.g., John G. Red Horse, State-court representatives (e.g., the period and Tribal consultation. The Family Preservation: Concepts in National Council of Juvenile and Family comments on the proposed rule and the American Indian Communities (Casey Court Judges (NCJFCJ) and the National contents of the final rule are discussed Family Programs and National Indian Center for State Courts’ Conference of in detail below in Section IV. Child Welfare Assoc. Dec. 2000). Chief Justices Tribal Relations In crafting this final rule, the Likewise, from the adoptee’s Committee), the National Indian Child Department is drawing from its perspective, extended-family-member Welfare Association, and the National expertise in Indian affairs generally, and involvement and strong connection to Congress of American Indians. The from its extensive experience in Tribe shape reunification. Ashley L. Department received comments from administering Indian child-welfare Landers et al., Finding Their Way Home: those at the listening sessions and also programs specifically. BIA’s Office of The Reunification of First Nations received written comments, including Indian Services, through its Division of Adoptees, 10 First Peoples Child & comments from individuals and Human Services, collects information Family Review no. 2 (2015). additional organizations. The from Tribes on their ICWA activities for Department considered these comments the Indian Child Welfare Quarterly and D. The Department’s Implementation of and subsequently published updated Annual Report, ensures that ICWA ICWA Guidelines (2015 Guidelines) in processes and resources are in place to As required by ICWA, the Department February 2015. See 80 FR 10146 (Feb. facilitate implementation of ICWA, issued regulations in 1979 to establish 25, 2015). administers the notice process under procedures through which a Tribe may Many commenters on the 2015 section 1912 of the Act, publishes a reassume jurisdiction over Indian child- Guidelines requested not only that the nationwide contact list of Tribally custody proceedings, 44 FR 45092 (Jul. Department update its ICWA guidelines designated ICWA agents for service of 24, 1979) (codified at 25 CFR part 23), but that the Department also issue notice, administers ICWA grants, and as well as procedures for notice of binding regulations addressing the maintains a central file of adoption involuntary Indian child-custody requirements and standards that ICWA records under ICWA. In addition, BIA proceedings, payment for appointed provides for State-court child-custody provides technical assistance to State counsel in State courts, and procedures proceedings. Commenters noted the role social workers and courts on ICWA and for the Department to provide grants to that regulations could provide in Indian child welfare in general,

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including but not limited to assisting in administers capacity-building centers § 1952 encompasses jurisdiction to issue locating expert witnesses and for States, Tribes, and courts. The rules at this time that set binding identifying language interpreters. Department of Justice has significant standards for Indian child-custody Currently, BIA employs a team of child expertise in court practice, Indian law, proceedings in State courts. ICWA protection social workers who provide and court decisions addressing ICWA. provides a broad and general grant of this assistance on an as-needed basis as This close coordination with the rulemaking authority that authorizes the part of their daily duties. BIA also Children’s Bureau and the Department Department to issue rules and employs an ICWA Policy Social Worker, of Justice has helped produce a final regulations as may be necessary to who is both an attorney and a social rule that reflects the expertise of all implement ICWA. Similar grants of worker, and who serves as the central three agencies. rulemaking authority have been held to BIA expert and liaison on ICWA Finally, in issuing this final rule, the presumptively authorize agencies to matters. Department has considered the trust issue rules and regulations addressing The Department is a significant obligation of the United States to Indian matters covered by the statute unless Federal funding source for Indian child- Tribes, which Congress expressly there is clear congressional intent to welfare programs run by Tribes. Social- referenced in ICWA. 25 U.S.C. 1901(3). withhold authority in a particular area. services funding is used to support The Department has also kept in mind See, e.g., AT&T Corp. v. Iowa Utils. Bd., Tribal and Department-operated Child the canon of construction, applied by 525 U.S. 366, 378 (1999); Am. Hospital Protection and Child Welfare Services Federal courts, that Federal statutes Ass’n v. Nat’l Labor Relations Bd., 499 (CPS/CW) on or near reservations and should be liberally construed in favor of U.S. 606, 609–10 (1991) (general grant of designated service areas. Tribal and Indians, with ambiguous provisions rulemaking authority ‘‘was Department caseworkers are the first interpreted for their benefit. See, e.g., unquestionably sufficient to authorize responders for child and family services Montana v. Blackfeet Tribe of Indians, the rule at issue in this case unless on reservations in Indian country. CPS/ 471 U.S. 759, 766 (1985); Doe v. Mann, limited by some other provision in the CW work is labor-intensive, as it 415 F.3d 1038, 1047 (9th Cir. 2005). Act’’); Mourning v. Family Publ’ns requires social-service workers to III. Authority for Regulations Serv., Inc., 411 U.S. 356, 369 (1973) frequently engage families through face- (‘‘[w]here the empowering provision of The Department’s primary authority to-face contacts, assess the safety of a statute states simply that the agency for this rule is 25 U.S.C. 1952. Section children, monitor case progress, and may ‘make . . . such rules and 1952 states that, within one hundred ensure that essential services and regulations as may be necessary to carry and eighty days after November 8, 1979, support are provided to the child and out the provisions of this Act,’ we have the Secretary shall promulgate such her family. This experience is critical held that the validity of a regulation toward understanding the areas where rules and regulations as may be necessary to carry out the provisions of promulgated thereunder will be ICWA is or is not working at the State sustained so long as it is ‘reasonably level, as well as the necessary standards this chapter. This expansive language evinces clear congressional intent that related to the purposes of the enabling to address ongoing problems. legislation’’’); see also City of Arlington Congress also tasked the Department the Secretary (or in this case, her v. FCC, 133 S. Ct. 1863, 1874 (2013) with affirmatively monitoring State delegee, the Assistant Secretary-Indian (finding not ‘‘a single case in which a compliance with ICWA by accessing Affairs, who oversees the Bureau of general conferral of rulemaking or State records of placement of Indian Indian Affairs) will issue rules to adjudicative authority has been held children, including documentation of implement ICWA. insufficient to support Chevron State efforts to fulfill ICWA placement As discussed above, the Department deference for an exercise of that preferences. See 25 U.S.C. 1915(e). State issued several rules implementing courts are further responsible for ICWA in 1979. These included authority within the agency’s providing the Department with a final regulations to establish procedures by substantive field’’); Qwest Communic’ns decree or adoptive order for any Indian which an Indian Tribe may reassume Int’l Inc. v. FCC, 229 F.3d 1172, 1179 child within 30 days after entering such jurisdiction over Indian child-custody (D.C. Cir. 2000) (‘‘[t]he grant of authority a judgment, together with any proceedings as authorized by § 1918 of relied upon by a federal agency in information necessary to show the ICWA, see 44 FR 45092 (codified at 25 promulgating regulations need not be Indian child’s name, birthdate, and CFR part 13); regulations addressing specific; it is only necessary ‘that the Tribal affiliation, the names and topics such as notice in involuntary reviewing court reasonably be able to addresses of the biological and adoptive child-custody proceedings, payment for conclude that the grant of authority parents, and the identity of any agency appointed counsel, grants to Indian contemplates the regulations issued’’’) having relevant information relating to Tribes and Indian organizations for (quoting Chrysler Corp. v. Brown, 441 the adoptive parent. See 25 CFR 23.71. Indian child and family programs, and U.S. 281, 308 (1979)). As discussed The Department’s experience recordkeeping and information elsewhere in this preamble, the administering these programs has availability, see 44 FR 45096 (codified at Department finds that this regulation is informed development of this rule. 25 CFR part 23); and interpretive ‘‘necessary to carry out the provisions’’ The Department has also consulted guidelines for State courts to apply in of ICWA, 25 U.S.C. 1952, and thus falls extensively with the Children’s Bureau Indian child-custody proceedings. See squarely within the statutory grant of of the Administration for Children and 44 FR 67584. Some of these rules and rulemaking authority. Families, Department of Health and regulations have been amended since ICWA’s legislative history is Human Services, and the Department of their original issuance. See, e.g., 59 FR consistent with the understanding that Justice in the formulation of this final 2248 (Jan. 13, 1994). the statute’s grant of rulemaking rule. The Children’s Bureau partners Having carefully considered public authority is broad and inclusive. The with Federal, State, and Tribal agencies comments on the issue and having original versions of the House and to improve the overall health and well- reflected on statements the Department Senate bills that led to the enactment of being of children and families, and has made in 1979, all of which are ICWA, as well as the version of the bill significant expertise in child abuse and discussed further below, the Department that passed the Senate, included the neglect. The Children’s Bureau also determines that the rulemaking grant in general grant of rulemaking authority

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but also included specific, additional commenters.3 Id. As described above, of the statute has been inconsistent and procedural requirements. See S. 1214, the Department concludes today that contradictory across, and sometimes 95th Cong., 1st Sess., Section 205; see this binding regulation is within the within, jurisdictions. This, in turn, has also S. Rep. No. 95–597 (Nov. 3, 1977). jurisdiction of the agency, was impeded the statutory intent of In particular, the bills required that encompassed by the statutory grant of providing minimum Federal standards within six months, the Secretary must rulemaking authority, and is necessary that would protect Indian children, consult with Tribes and Indian to implement the Act. families, and Tribes, and has allowed organizations ‘‘in the consideration and While the Department stated in 1979 problems identified in the 1970s to formulation of rules and regulations to that binding regulations were ‘‘not remain in the present day. The lack of implement the provisions of this Act’’; necessary to carry out the Act,’’ 37 years clarity and uniformity regarding the within seven months, present the of real-world ICWA application have meaning of key ICWA provisions also proposed rules to congressional thoroughly disproven that conclusion creates confusion, delays, and appeals committees; within eight months, and underscored the need for this in individual cases involving Indian publish proposed rules for notice and regulation. See discussion supra at children. comment; and within ten months, Section II.C. The intervening years have For these reasons, the Department’s promulgate final rules and regulations shown both that State-court application decision to issue binding regulations to implement the provisions of the Act. finds strong support in the Supreme See S. 1214, sec. 205(b)(1). The bills 3 See, e.g., Letter from Bob Aitken, Director, Court’s carefully reasoned decision in authorized the Secretary to revise the Social Services, The Minnesota Chippewa Tribe to Mississippi Band of Choctaw Indians v. David Etheridge (May 23, 1979) (on file with the rules and regulations, but required that Department of the Interior) (‘‘I feel strongly the Holyfield, 490 U.S. 30 (1989). There, the they be presented to the congressional Bureau of Indian Affairs should not be putting any Supreme Court addressed whether a committees first. Id. 205(c). These of the act in ‘guideline’ form. The ‘recommended State court had jurisdiction over a child- guidelines for state courts’ should be in rule or custody proceeding involving two requirements were considered during regulation form for state courts to follow. It appears hearings held on February 9 and March the state courts will have a choice on whether or Indian children. As the sole disputed 9, 1978, before the House of not to follow the Act. In my opinion, the Act does issue in the case was whether the Representatives Committee on Interior delegate to the Interior Department the authority to children were ‘‘domiciled’’ on a mandate such procedures.’’); Letter from Henry reservation for ICWA purposes, the and Insular Affairs. See 1978 House Sockheson, Chairman, Steering Committee of the Hearings at 47. National Association of Indian Legal Services, to Court confronted the initial question During debate of the bill on the House David Etheridge (May 17, 1979) (on file with the whether Congress intended the floor, the bill sponsor, Representative Department of the Interior) (‘‘Fearful of a definition of ‘‘domicile’’ to be a matter Udall, offered an amendment to change constitutional challenge by states, a possibility of State law. The Court noted that ‘‘the soundly discredited and rejected by the lawmakers, the rulemaking grant to its current text. the Secretary has adopted a position which flies in meaning of a federal statute is Representative Udall explained that this the face of clear Congressional intent to the necessarily a federal question in the amendment was designed to remove the contrary, i.e., that he, even as a steward of sense that its construction remains burdens of submitting regulations to Congressional purpose, cannot mandate procedures subject to this Court’s supervision.’’ Id. for state or tribal courts, the very meat & potatoes congressional committees, but did not of the whole of Title I of the Act. In the place of at 43. The Court further noted the rule indicate that the scope of the grant of these badly needed regulations, therefore, was of statutory construction that ‘‘Congress rulemaking authority was to change in substituted a Notice of ‘Recommended Guidelines when it enacts a statute is not making any way. See 124 Cong. Rec. H38,107 for State Courts-Indian Child-custody proceedings’, the application of the federal act which will have the practical effect of regulations (1978). ICWA thus does not impose without the protections afforded to the public under dependent on state law.’’ Id. The Court procedural requirements on rulemaking the Administrative Procedures Act. . . . It is explained that one reason for this rule that exceed those required by the apparent that the delicate relationships sought to be ‘‘is that federal statutes are generally Administrative Procedure Act. preserved by the Act justified and required intended to have uniform nationwide regulatory action with regard to state court Moreover, the Department views it as procedures by the Bureau and cannot be subjected application’’ and another reason for the unlikely that Congress would have to the whim of what surely Congress believed were rule is ‘‘the danger that the federal introduced and considered bills recalcitrant state courts now functioning under program would be impaired if state law questionable ‘guidelines.’ ’’); Letter from Alexander throughout the 95th Congress that Lewis, Sr., Governor, Gila River Indian Community, were to control.’’ Id. at 43–44. would have imposed burdensome to David Etheridge (May 21, 1979) (on file with the The Court then discussed its prior procedural requirements on the agency Department of the Interior) (‘‘[A]bsent regulations holding in NLRB v. Hearst Publications if Congress did not intend that § 1952 [and] without force and effect, the guidelines are Inc., 322 U.S. 111 (1944), where it useless and the aims of the Act will be made more rejected an argument that the term would provide the Department with a difficult to achieve. . . . By virtue of the Supremacy broad grant of rulemaking authority. Clause of the United States Constitution, and this ‘‘employee’’ in the Wagner Act should Act of Congress—the Indian Child Welfare Act, the be defined by State law. It quoted that A. Statements Made in the 1979 Secretary of the Interior does have authority to decision’s finding that ‘‘[t]he Wagner Guidelines promulgate regulations regarding the transfer of Act is . . . intended to solve a national jurisdiction of Indian child proceedings from State The Department has reconsidered and to Tribal Court. I urge that you reconsider this problem on a national scale.’’ 490 U.S. no longer agrees with statements it action and promulgate regulations instead of at 44. The Court concluded that what it made in 1979 suggesting that it lacks the guidelines, so that the provisions of the Act will not said of the Wagner Act ‘‘applies equally authority to issue binding regulations. be emasculated.’’); Letter from Frank Stede, Vice- well to the ICWA.’’ Id. In explaining the Chief, Mississippi Band of Choctaw Indians, to At that time, although it undertook a David Etheridge (May 22, 1979) (on file with the reasons for this conclusion, the Court notice-and-comment process, the Department of the Interior) (‘‘[T]he notices should noted, inter alia, that ‘‘Congress was Department made clear that the final have been issued [as] regulations contrary to what concerned with the rights of Indian issued guidelines addressing State-court the Interior Department presents as an [argument] families and Indian communities vis-a`- for not issuing the guide lines as notices, the Indian-child-custody proceedings were Congress clearly gave the Secretary authority to vis state authorities’’ and ‘‘that Congress not intended to have binding effect. See mandate procedures for State or Tribal court by perceived the States and their courts as 44 FR 67584. The Department cited a passing legislation which deals with State and partly responsible for the problem it number of reasons for issuing Tribal [i]ssue[s] in such an extensive fashion, intended to correct.’’ Id. at 45. ‘‘Under clearly Congress would not have [g]one to such nonbinding guidelines, a course of details if it had intended that compliance to [be] these circumstances, it is most action that was opposed by numerous voluntary.’’). improbable that Congress would have

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intended to leave the scope of the few decades, there have been divergent support of these comments are statute’s key jurisdictional provision interpretations of ICWA provisions by discussed separately below. subject to definition by state courts as a State courts and uneven implementation 1. Agency Expertise matter of state law.’’ Id. The Holyfield by State agencies that undermine this Court also recognized that Congress purpose. Congress passed ICWA to Comment: Some commenters stated intended the implementation of ICWA address State-court and -agency that the BIA does not have expertise to have nationwide consistency, so application of child-welfare laws to with respect to the child-welfare matters ‘‘Congress could hardly have intended provide a minimum Federal floor for addressed by ICWA. These commenters the lack of nationwide uniformity that such proceedings. These commenters pointed to a number of Supreme Court would result from state-law definitions asserted that regulations to enforce the cases that establish domestic-relations of domicile.’’ Id. minimum standards and address law as being within the realm of State In 1979, the Department had neither inconsistencies in implementation are law. the benefit of the Holyfield Court’s well within the authority that Congress Response: The Department carefully reasoned decision nor the delegated to the Department. respectfully disagrees with these commenters. ICWA addresses Indian opportunity to observe how a lack of Other commenters stated that affairs, is premised on Congress’s uniformity in the interpretation of deference under Chevron U.S.A. Inc. v. plenary Indian-affairs power and trust ICWA by State courts could undermine Natural Resources Defense Council, 467 responsibility, and seeks to prevent the statute’s underlying purposes. In U.S. 837 (1984), would apply to the unwarranted State intrusion into Tribal practice, the meaning of various regulations because the regulations are affairs and sovereignty and to protect provisions of the Act has been subject within the grant of authority from the integrity of Indian families. See 25 to differing interpretation by each of the Congress and directly address areas that U.S.C. 1901, 1902. An express purpose 50 States, and within the States, by are enforced inconsistently by the States various courts. What was intended to be of the statute was to provide safeguards in derogation of congressional intent. A against State officials who may not a uniform Federal minimum standard commenter pointed out that there is no now varies in its application based on understand Tribal cultural or social case in which a general conferral of standards. 25 U.S.C. 1901. the State or even the judicial district. rulemaking authority has been held See discussion supra at Section II.C. These are all areas squarely within the insufficient to support Chevron mandate and expertise of the BIA. The The Department thus has come to deference for an exercise of that recognize that, as the Supreme Court BIA is the Federal agency charged with authority within the agency’s the management of all Indian affairs and stated in Holyfield, ‘‘a statute under substantive field. which different rules apply from time to of all matters arising out of Indian Some commenters noted that under time to the same child, simply as a relations, 25 U.S.C. 2, and may established case law, the Department’s result of his or her transport from one proscribe such regulations as [it] may State to another, cannot be what statements in 1979 concerning its think fit for carrying into effect the Congress had in mind.’’ Id. at 46. authority to issue a binding regulation various provisions of any act relating to Many commenters cited, or made do not preclude it from issuing this Indian affairs. 25 U.S.C. 9. The BIA’s comments that repeated, specific binding regulation. Commenters further special expertise regarding Indian statements made by the Department in stated that issuance of the regulation is affairs, including Indian cultural values 1979 in arguing that the Department fully consistent with the Tenth and social norms related to child- should or should not issue a binding Amendment, discounted the Federalism rearing, as well as Indian family and regulation. These statements, and the concerns potentially implicated by the child service programs, make it logical reasons why the Department is now regulation, and dismissed any for Congress to have entrusted the departing from them, are discussed suggestion that the regulation is Department with rulemaking authority further below in the responses to unconstitutional. Some of these for the statute.4 Cf. Runs After v. United comments. commenters stated that domestic family States, 766 F.2d 347, 352 (9th Cir. 1985) law is no longer the exclusive purview (‘‘It cannot be denied that the BIA has B. Comments Agreeing That Interior of States, if it ever was. Many special expertise and extensive May Issue a Binding Regulation commenters urged the Department to experience in dealing with Indian Some commenters, including a group include in this preamble a thorough affairs.’’); Golden Hill Paugussett Tribe of law professors and the Tribal Law discussion of its authority to issue this of Indians v. Weicker, 39 F.3d 51, 60 (2d and Policy Institute, asserted that the binding regulation, including the Cir. 1994). Department has sufficient authority to citations to case law, in an effort to Further, BIA has extensive and issue binding regulations and that the ensure that State courts will adhere to longstanding experience in Indian legal basis for regulatory action is the regulations. child-welfare matters. Congress strong. These commenters pointed to 25 The Department agrees with these statutorily charged BIA with providing U.S.C. 1952 authorizing the Department comments for the detailed reasons set child-welfare services to all federally to promulgate such rules and forth in this preamble. recognized Tribes. BIA social services regulations as may be necessary to carry and law enforcement are often the first C. Comments Disagreeing That the out the provisions of the Act and 25 responders in matters involving families Department Has Authority To Issue a U.S.C. 2 and 9, which provide Interior and children. See, e.g., 25 CFR part 20. Binding Regulation with general authority to prescribe regulations to carry into effect any Other commenters asserted that the 4 Indeed, the BIA has a long-established hiring preference for qualified Indian individuals, which provision of any Act of Congress Department does not have the authority was designed ‘‘to increase the participation of tribal relating to Indian affairs. These to promulgate regulations. These Indians in BIA operations’’ and ‘‘make the BIA commenters further pointed to the fact commenters generally stated that ICWA more responsive to the needs of its constituent that Congress’s intent was to establish provides the Department with authority groups.’’ Morton v. Mancari, 417 U.S. 535, 543–44, 554 (1974). The BIA is thus particularly well-suited ‘‘minimum Federal standards’’ to be for rulemaking only with respect to to set standards that ensure consideration of Tribal applied in State child-custody limited matters, such as with respect to cultural and social practices, and protect the proceedings, and noted that in the last grants to Tribes. The reasons cited in integrity of Tribes.

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These regulations fall squarely under delegate responsibility to the the essential tribal relations of Indian the Department’s broad responsibilities Department ‘‘rests with the courts that people and the cultural and social for Indian affairs. Finally, BIA has decide Indian child custody cases.’’ In standards prevailing in Indian consulted extensively with the support of this statement, these communities and families. See 25 U.S.C. Children’s Bureau of the Administration commenters noted that the Department 1901(5); see also H.R. Rep. No. 95–1386, for Children and Families, Department cited ICWA’s legislative history, which at 10–12 (identifying as two of the of Health and Human Services, in states that the term ‘‘good cause,’’ was leading factors contributing to the high formulating this final rule. The ‘‘designed to provide state courts with rates of Indian-child removal the lack of Children’s Bureau partners with flexibility in determining the culturally competent State child-welfare Federal, State, Tribal, and local disposition of a placement proceeding standards for assessing the fitness of governments to improve the overall involving an Indian child.’’ Indian families and systematic due- health and well-being of children and Response: As noted above, the process violations against both Indian families, and has significant expertise in language in § 1952 authorizing the children and their parents during child- child abuse and neglect. The Children’s Department to ‘‘promulgate such rules custody proceedings). Bureau also administers capacity and regulations as may be necessary to In Holyfield, the Supreme Court building centers for States, Tribes, and carry out the provisions of this chapter’’ reviewed Congress’s findings, which courts. BIA also consulted with the provides authority for this rulemaking. demonstrate that Congress ‘‘perceived Department of Justice, which has Accordingly, contrary to the the States and their courts as partly significant expertise in court practice, Department’s suggestion in 1979, the responsible for the problem it intended Indian law, and court decisions Department has authority to interpret to correct.’’ 490 U.S. at 45. The Court addressing ICWA. Close coordination the portions of ICWA addressed in this concluded that ‘‘[u]nder these with these agencies has helped produce rule. circumstances it is most improbable that a final rule that reflects the substantial As discussed above, the Department’s Congress would have intended to leave expertise of the Federal government in conclusion is in accord with ICWA’s the scope of the statute’s key this area. legislative history and the carefully jurisdictional provision subject to reasoned decision in Holyfield, where definition by state courts as a matter of 2. Chevron Deference the Supreme Court noted that the state law.’’ Id. The Department similarly Comment: Commenters also asserted meaning of key ICWA terms and concludes here that ‘‘[u]nder these that courts will not grant these requirements necessarily raises Federal circumstances,’’ it is improbable that regulations deference under Chevron questions and that conflicting Congress intended the broad grant of U.S.A. Inc. v. Natural Resources Defense interpretations of the statute can lead to rulemaking authority in § 1952 to Council, 467 U.S. 837 (1984), because, arbitrary outcomes that threaten the authorize the Department to issue they assert, Chevron deference applies rights that ICWA was intended to binding rules that interpret only those only to interpretations of statutes that protect. In 1979, the Department gave portions of ICWA that expressly the agency administers and the excessive weight to a single statement in delegate responsibility to the Department has no statutory authority the legislative history indicating that the Department. over child welfare. Commenters also term ‘‘good cause’’ was designed to asserted that no deference is warranted provide State courts with flexibility 4. Tenth Amendment and Federalism because of the statements the when making certain determinations. 44 Comment: Some commenters asserted Department made in 1979 concerning FR at 67584. That single statement was that the proposed rule violates the the scope of its rulemaking authority. not addressing the reach of the Tenth Amendment of the U.S. These commenters also assert that the Department’s rulemaking authority. S. Constitution because it commandeers regulations represent an interpretation Rep. No. 95–597, at 17. Moreover, to the State courts, or for unspecified reasons. of ICWA that is not within the range of extent that the Department then Commenters also cited, or made reasonable interpretations, and that the believed that providing any regulatory statements that repeated, Federalism Department’s interpretation of certain guidance on the meaning of terms such concerns that the Department briefly provisions would render ICWA as ‘‘good cause’’ improperly intrudes on referenced in 1979. These commenters unconstitutional. a State court’s flexibility to address pointed out that the Department stated Response: The authority of the particular factual scenarios, that in 1979 that it would have been Department to issue this rule has been interpretation was incorrect. The extraordinary for Congress to authorize addressed above, and the rule is entitled Department’s standards relating to the Department to exercise supervisory to Chevron deference by Federal and ‘‘good cause’’ in the final rule continue authority over State or Tribal courts, or State courts. As discussed in more detail to leave State courts with flexibility, to legislate for them with respect to in this preamble, the provisions of the consistent with the legislative history. Indian child-custody matters, in the final rule represent reasonable And other statements in the legislative absence of an express congressional interpretations of the statute and do not history, which were not referenced by declaration to that effect. See 44 FR raise constitutional concerns. Moreover, the Department in 1979, suggest 67584. The Department also stated that under any circumstances, the Congress desired Federal agencies to be nothing in ICWA’s legislative history Department’s interpretation of a more involved in State removals of indicated that Congress intended to statutory provision in this rule cannot Indian children. See, e.g., 1974 Senate delegate such extraordinary authority. render the statute unconstitutional. Hearing at 463–65. Id. Several commenters stated that the The Department also finds that the rule violates Federalism principles 3. Primary Responsibility for congressional purpose in passing ICWA because it tells State-court judges what Interpreting the Act supports its decision to issue this rule. they may and may not consider, and Comment: Some commenters cited, or Congress found that the States, exactly how to interpret a Federal law. made statements that mirrored, the exercising their recognized jurisdiction Response: The Department has Department’s statement in 1979 that over Indian child-custody proceedings reflected on these comments and has ‘‘primary responsibility’’ for interpreting through administrative and judicial reconsidered the statements it made in portions of ICWA that do not expressly bodies, have often failed to recognize 1979. While ICWA does not ‘‘oust the

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States of their traditional jurisdiction before them.5 For these reasons, and certain State authority and enacted over Indian children falling within their because Congress unambiguously ICWA to address Indian child welfare geographical limits,’’ H.R. Rep. No. 95– provided the Department authority to through a statutory framework intended 1386, at 19, Congress enacted ICWA to issue this rule, the Department does not to apply uniformly across States. Since curtail State authority in certain view Federalism concerns as counseling 1978, States have been required to respects. At the heart of ICWA are against the issuance of this rule.6 comply with ICWA, and this regulation serves to interpret and fill gaps in the provisions that address the respective 5. Federalism Executive Order jurisdiction of Tribal and State courts. Federal minimum standards and Comment: A few commenters Other important provisions of ICWA procedural safeguards set forth in the additionally stated that the rule has require State courts to apply minimum statute. Many of the standards included Federalism implications because it has in this rule are already being followed Federal standards and procedural substantial direct effects on States, on safeguards in child-custody proceedings by a number of States. the relationship between the national In the notice of the proposed rule, the for Indian children. This rule serves to government and States, and on the Department specifically solicited clarify ICWA’s requirements, with the distribution of power and comments on the proposed rule from goal of promoting uniform application responsibilities among the various State officials, including suggestions for of the statute across States. levels of government. A commenter how the rule could be made more While a few commenters asserted that stated that the Department violates the flexible for State implementation. 80 FR this rule violates the Tenth Amendment, Federalism executive order because the 14883. The Department carefully the Supreme Court repeatedly has rule preempts State law, and the considered and addressed in this reaffirmed the ‘‘power of Congress to Department did not provide ‘‘all rulemaking all comments received pass laws enforceable in state courts.’’ affected State and local officials’’ notice concerning this regulation, some of New York v. United States, 505 U.S. and opportunity to comment on that which were submitted by State judges 144, 178 (1992); Testa v. Katt, 330 U.S. preemption as required. and other State officials. 386, 394 (1947); F.E.R.C. v. Mississippi, Response: The Department stated in the proposed rule that ‘‘[u]nder the 6. Change in Position From Statements 456 U.S. 742, 760–61 (1982). The Court Made in 1979 also has explained that ‘‘[i]f a power is criteria in Executive Order 13132, this delegated to Congress in the rule has no substantial direct effect on Comment: Several commenters the States, on the relationship between expressed concern that the Department’s Constitution, the Tenth Amendment the national government and the States, issuance of a binding regulation would expressly disclaims any reservation of or on the distribution of power and be inconsistent with, or impermissible that power to the States.’’ New York, 505 responsibilities among the various in light of, statements the Department U.S. at 156. Here, Congress enacted levels of government.’’ The Department made in 1979 regarding its authority to ICWA primarily pursuant to the Indian thus ‘‘determined that this rule promulgate binding regulations. These Commerce Clause, which provides complies with the fundamental commenters asserted that the Congress with plenary power over Federalism principles and policymaking Department’s issuance of a binding Indian affairs. 25 U.S.C. 1901(1). In criteria established in EO 13132.’’ The regulation would conflict with clarifying ICWA’s requirements, the Department reaffirms these established case law and that the Department is exercising the authority determinations, and respectfully binding regulation would ‘‘sweep aside that Congress delegated to it. Having disagrees with commenters who stated 37 years of state appellate court considered the nature of this rule, the or suggested that these determinations decisions regarding rights of children comments received, and the relevant are incorrect. and families.’’ case law, the Department concludes that ICWA balances the Federal interest in Response: The Department has this rule does not violate the Tenth protecting the integrity of Indian described its reasons for departing from Amendment for the same reasons that families and the sovereign authority of the statements it made in 1979. Under ICWA does not violate the Tenth Indian Tribes with the States’ sovereign well-established case law, the Amendment. interest in child-welfare matters. Department’s prior statements pose no The Department also has reflected on Congress carefully crafted ICWA’s bar to this regulation. The Department the Federalism concerns it noted in jurisdictional scheme so as to recognize also notes that the final rule does not 1979. The Department does not view the authority of each of these disregard State appellate-court sovereigns. In crafting this scheme, this rule as an ‘‘extraordinary’’ exercise decisions. To the contrary, the Congress recognized a need to curtail of authority involving an assertion of Department carefully considered State ‘‘supervisory control’’ over State courts. appellate-court decisions, State 5 The Supreme Court has explained that ‘‘[v]alid legislation, and State guidance While the Department’s promulgation of regulations establish legal norms. Courts can give this rule may override what some courts them proper effect even while applying the law to documents in promulgating the final believed to be the best interpretation of newfound facts, just as any court conducting a trial rule. Many State standards and practices in the first instance must conform its rulings to ambiguous provisions of ICWA or how are reflected in the final rule. And on controlling statutes, rules, and judicial precedents.’’ many issues, the Department’s review of these courts filled gaps in ICWA’s United States v. Haggar Apparel Co., 526 U.S. 380, requirements, the Supreme Court has 391 (1999). Of course, the construction of ICWA by disparate State standards reinforced the reasoned that such a scenario is not State courts will ‘‘remain[ ] subject to [the Supreme] Department’s view that more uniformity Court’s supervision.’’ Holyfield, 490 U.S. at 43. in the interpretation of ICWA is needed. equivalent to making ‘‘judicial decisions 6 In evaluating these concerns, the Department subject to reversal by executives.’’ Nat’l also notes that Congress provides a substantial 7. Timeliness Cable & Telecomm. Ass’n v. Brand X amount of Federal funding to States for child- welfare programs, see, e.g., Consolidated and Comment: Some commenters who Internet Servs., 545 U.S. 967, 983 (2005). Further Continuing Appropriations Act, 2015 (Pub. argued the regulations are unauthorized Rather, the Department’s rule clarifies a L. 113–235); Emilie Stoltzfus, Child Welfare: An focused on the fact that ICWA imposed limited set of substantive standards and Overview of Federal Programs and Their Current a deadline of November 8, 1978 for the related procedural safeguards that Funding (Congressional Research Service 2015), and that other Federal statutes address State family Department to promulgate regulations; courts will apply to the particular cases law. See, e.g., 42 U.S.C. 652. these commenters state that the

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authority for promulgating regulations Since issuing the proposed rule, the the incidence of neglect or separation.’’ expired after that date. Department has engaged in a robust Id. The ‘‘active efforts’’ requirement is Response: ICWA states that ‘‘within’’ public comment process, as discussed one of the primary tools provided in 180 days after November 8, 1978, the above and as evidenced by the large ICWA to address this failure, and Department shall promulgate such rules number of written comments received should thus be interpreted in a way that and regulations as may be necessary to by BIA on this rulemaking. requires substantial and meaningful carry out ICWA. See 25 U.S.C. 1952. actions by agencies to reunite Indian Regulations may be issued after the 2. Locations of Meetings/Consultations children with their families. The ‘‘active passage of a statutory deadline, Comment: Several commenters efforts’’ requirement is designed however, so long as the statute, as is the opposed the locations where the primarily to ensure that services are case with ICWA, does not spell out Department held the public hearings on provided that would permit the Indian explicit consequences for late action. the proposed rule during the public child to remain or be reunited with her See, e.g., Barnhart v. Peabody Coal Co., comment process. The commenters parents, whenever possible. This is 537 U.S. 149, 159 (2003); Brock v. Pierce noted that all the hearings were held viewed by some child-welfare Cty., 476 U.S. 253, 262 (1986). west of the Mississippi River, and none organizations as part of the ‘‘gold IV. Discussion of Rule and Comments were held in any of the most populous standard’’ of what services should be States. Some commenters requested provided in child-welfare proceedings. A. Public Comment and Tribal additional hearings in various locations. The Department finds that there are Consultation Process Response: The Department chose compelling reasons for setting a nationwide definition for this critical 1. Fairness in Proposing the Rule locations for public hearings based on general areas where there are likely to statutory term. Although there is Comment: Commenters asserted that be larger populations of Indian children substantial agreement, among those the 2015 Guidelines and the proposed and thus more ICWA proceedings. The State courts that have considered the regulations were drafted without any Department also hosted a national issue, that active efforts requires more outreach or request for comment from teleconference to accommodate other than simply formulating a case plan for adoption agencies, attorneys, or other interested persons who were unable to the parent of an Indian child, there is adoption professionals. One commenter attend an in-person session including, still variation among the States as to stated that all the comments that were but not limited to, anyone who may what level of efforts is required. This incorporated into the proposed reside far from where the in-person means that the standard for what regulations were only from the position sessions were held. A total of 215 constitutes ‘‘active efforts’’ can vary of Indian Tribes, and did not reflect any persons participated by teleconference. substantially among States, even for input from State Attorney Generals, In addition, Tribal consultation sessions similarly situated Indian children and State child-welfare agencies, or others. and public hearings were held in their parents. The final rule will reduce Other commenters stated their Oklahoma, Alaska, and several other this variation, thus promoting appreciation for the Department’s locations. More than 2,100 written nationwide consistency in the diligence in seeking input from the comments were received. implementation of this Federal right. public. Commenters stated that the The final rule defines ‘‘active efforts’’ experts on Indian child-welfare matters B. Definitions and provides examples of what may are Tribes, because they work in the 1. ‘‘Active Efforts’’ constitute active efforts in a particular field on a daily basis and have no case. The final rule retains the language special interest in determining the best ICWA requires the use of ‘‘active from the proposed rule that active interest of Tribal children beyond efforts’’ to provide remedial services efforts means actions intended primarily wanting the children to succeed and be and rehabilitative programs designed to to maintain and reunite an Indian child connected to their culture and prevent the breakup of the Indian with his or her family. The final rule community. A number of States family. 25 U.S.C. 1912(d). ICWA does clarifies that, where an agency is commented favorably on the proposed not define ‘‘active efforts.’’ The involved in the child-custody rule, and provided helpful comments to Department finds, however, that proceeding, active efforts involve improve the final rule. Congress intended this requirement to assisting the parent through the steps of Response: The Department disagrees provide vital protections to Indian a case plan, including accessing needed with the assertion that the 2015 children and their families by requiring services and resources. This is Guidelines or proposed rule were that support be provided to keep them consistent with congressional intent— developed without public input. As part together, whenever possible. In by its plain and ordinary meaning, of the preparation of the updated particular, Congress recognized that ‘‘active’’ cannot be merely ‘‘passive.’’ guidelines, the Department invited many Indian children were removed The final rule indicates that, to the comments from federally recognized from their homes because of poverty, extent possible, active efforts should be Indian Tribes, State-court joblessness, substandard housing, and provided in a manner consistent with representatives, and organizations related circumstances. Congress also the prevailing social and cultural concerned with Tribal children, child recognized that Indian parents conditions of the Indian child’s Tribe, welfare, and adoption. See 80 FR at sometimes suffered from ‘‘cultural and in partnership with the child, 10146–67. Those comments, the disorientation, a [ ] sense of parents, extended family, and Tribe. recommendations of the Attorney powerlessness, [and] loss of self- This is consistent with congressional General’s Advisory Committee on esteem,’’ and that these forces ‘‘arise, in direction in ICWA to conduct Indian American Indian/Alaska Native large measure from our national child-welfare proceedings in a way that Children Exposed to Violence, attitudes as reflected in long-established reflects the cultural and social standards developments in ICWA jurisprudence, Federal policy and from arbitrary acts of prevailing in Indian communities and and the expertise of the Department and Government.’’ H.R. Rep. No. 95–1386, at families. There is also evidence that other Federal agencies were all 12. But, Congress concluded, ‘‘agencies services that are adapted to the client’s considered in updating the guidelines as of government often fail to recognize cultural backgrounds are better. See, well as the drafting of the proposed rule. immediate, practical means to reduce e.g., Mental Health: Culture, Race, and

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Ethnicity: A Supplement to Mental provide or offer reunification services to with substantive services and not Health: A Report of the Surgeon General a non-ICWA case.’’ Some of these merely make the services available. (2001); Substance Abuse and Mental commenters requested even stronger Response: The Department agrees and Health Services Administration, A language distinguishing the two. Other the final rule’s definition of ‘‘active Treatment Improvement Protocol: commenters opposed defining active efforts’’ reflects this. Improving Cultural Competence (2015); efforts in relation to reasonable efforts. Comment: A few commenters Smith, T.B. et al., (2011), Culture, J. Commenters stated that BIA has no suggested adding appointment of legal Clin. Psychol. 67, 166–175 (meta- authority to determine how reasonable counsel for both parents and children as analysis finding the most effective efforts and active efforts would compare a requirement for active efforts. psychotherapy treatments tended to be and that comparing them raises equal Response: Appointment of legal those with greater numbers of cultural protection concerns. One commenter counsel does not clearly fall within the adaptations); Benish, S.G. et al., (2011), stated that the term does not need a scope of remedial services and Culturally Adapted Psychotherapy and definition. rehabilitative programs designed to the Legitimacy of Myth: A Direct- Response: The proposed rule defined prevent the breakup of the Indian family Comparison Meta-Analysis, 58 J. of ‘‘active efforts’’ in a manner that for which active efforts is required. 25 Counseling Psychol. No. 3, 279–289 compared it to ‘‘reasonable efforts’’ U.S.C. 1912(d). Further, 25 U.S.C. (meta-analysis finding that culturally because many understand active efforts 1912(b) separately provides for adapted psychotherapy is more effective and reasonable efforts as relative to each appointment of counsel for the parent or than unadapted psychotherapy). other, where active efforts is higher on Indian custodian in any case in which Unlike the proposed rule, the final the continuum of efforts required and the court determines indigency. rule does not define ‘‘active efforts’’ in reasonable efforts is lower on that Comment: Many commenters comparison to ‘‘reasonable efforts.’’ continuum. See, e.g., In re Nicole B., 927 supported the proposed examples of After considering public comments on A.2d 1194, 1206–07 (Md. Ct. Spec. App. ‘‘active efforts’’ in the definition, one this issue, the Department concluded 2007). However, as commenters pointed saying they will be ‘‘extremely helpful’’ that referencing ‘‘reasonable efforts’’ out, the terms are used in separate laws for determining whether services would not promote clarity or and are subject to separate analyses. The comply with the higher standard. The consistency, as the term ‘‘reasonable term ‘‘reasonable efforts’’ is not used in Oregon Juvenile Court Improvement efforts’’ is not in ICWA and arises from ICWA; rather, it is used in the Adoption Program noted that many of the different laws (e.g., the Adoption Assistance and Child Welfare Act of examples reinforce Oregon’s document Assistance and Child Welfare Act of 1980, as modified by the Adoption and ‘‘Active Efforts Principles and 1980, as modified by the Adoption and Safe Families Act (ASFA). See 42 U.S.C. Expectations.’’ A few commenters Safe Families Act (ASFA), see 42 U.S.C. 670, et seq. ASFA establishes suggested clarifying that the list is not 670, et seq., as well as State laws). Such ‘‘reasonable efforts’’ as a State exhaustive. Some suggested requiring a reference is unnecessary because the responsibility in order to be eligible for minimum number of the items on the definition in the final rule focuses on Federal foster-care placement funding. list to be met to reach the ‘‘active what actions are necessary to constitute Some State laws also utilize a efforts’’ threshold, while others active efforts. ‘‘reasonable efforts’’ standard. requested clarifying that not all the The Department recognizes that what ICWA, however, requires ‘‘active items are required to be met to reach the constitutes sufficient ‘‘active efforts’’ efforts’’ prior to foster-care placement of threshold. A few commenters suggested will vary from case-to-case, and the or termination of parental rights to an shortening and simplifying the list. definition in the final rule retains State Indian child, regardless of whether the Others suggested including in each item court discretion to consider the facts agency is receiving Federal funding. a requirement to work with the Tribe. and circumstances of the particular case Having considered the concerns of Several commented on the specifics of before it. commenters with the use of the term each example of ‘‘active efforts’’ listed Comment: Several commenters stated ‘‘reasonable efforts’’ as a point of in the definition. Some suggested their support for the definition and comparison, the Department has adding new examples. examples of active efforts. Several decided to delete reference to Response: The final rule simplifies commenters, including States and State- ‘‘reasonable efforts’’ from the definition the list somewhat by combining similar court judges, noted the term ‘‘active of ‘‘active efforts’’ in the final rule. Such examples and clarifies that the list is not efforts’’ is in need of clarification. reference is unnecessary because the an exhaustive list of examples. The Commenters noted that, while agencies definition now focuses on the actions minimum actions required to meet the are required to provide active efforts, necessary to constitute active efforts, as ‘‘active efforts’’ threshold will depend there has not been a clear understanding affirmative, active, thorough, and timely on unique circumstances of the case. of the level and types of services efforts. Instead, the final rule provides The final rule also states, consistent required and the term is interpreted additional examples and clarifications with the BIA 1979 and 2015 Guidelines, differently from State to State and even as to what constitutes active efforts. that whenever possible, active efforts county to county. One commenter noted Comment: A commenter pointed out should be provided in partnership with that it receives numerous questions that the ‘‘active efforts’’ requirement in the Indian child’s Tribe, and should be about active efforts each year and the Act applies only to the ‘‘Indian provided in a manner consistent with published a guide on this topic but that family’’ and not to the Tribal the prevailing cultural and social a nationwide regulation would further community. conditions and way of life of the Indian clarify the requirements. Several Response: The final rule deletes child’s Tribe. This practice is consistent commenters supported the language reference to ‘‘Tribal community’’ in the with Congress’ intent in ICWA that State stating that active efforts are above and definition. child-custody proceedings better beyond the reasonable efforts standard Comment: A commenter noted that incorporate and consider Tribal values for non-ICWA cases. One commenter the legislative history of the ‘‘active and culture. Further, as discussed stated that California courts have efforts’’ provision demonstrates that above, culturally adapted treatment construed active efforts as ‘‘essentially Congress intended to require States to strategies have been shown to be more equivalent to reasonable efforts to affirmatively provide Indian families effective.

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Comment: A commenter stated that child or termination of parental rights. rule add that the father has ‘‘continued the definition of ‘‘active efforts’’ reveals See, e.g. 25 U.S.C. 1912 (a), (d). custody,’’ even without physical or legal an assumption that the child has had a Comment: A few commenters stated custody, unless he abandoned the child connection with the Tribal community, that the definition should clarify that prior to birth. by using the terms ‘‘maintain’’ and ‘‘agencies’’ are covered by the Response: The final rule retains the ‘‘reunite.’’ The commenter states that regulations even if they are not licensed definition of ‘‘continued custody’’ as this assumption is imbedded in the Act, by the State. One commenter stated that proposed, which includes custody the which suggests that a relationship with the definition should also include parent or Indian custodian ‘‘has or had the Tribal community was already in attorneys and others who participate in at any point in the past.’’ It clarifies that existence, and so the Act should not private placements, so that they will the parent or custodian may have apply to children raised outside their also be subjected to requirements for physical and/or legal custody under any Tribal communities prior to removal; ICWA compliance. applicable Tribal law or Tribal custom otherwise, the Act would force the child Response: The final rule updates the or State law. The definition is consistent to assume a new cultural identity on the definition of ‘‘agency’’ to mean with Adoptive Couple v. Baby Girl, basis of ancestry alone. organizations including those who may which determined under the facts of Response: The Act and the regulations assist in the administrative or social that case that the father never had require ‘‘active efforts’’ to prevent the work aspects of seeking placement. An custody. The Department finds that this breakup of the Indian child’s family. ‘‘agency’’ may also be assisting in the definition is also most consistent with Neither the text of the statute nor its legal aspects of seeking placement, but ICWA, which in other contexts defines legislative history suggests that this the definition does not include legal custody as well as parental rights requirement is limited to circumstances attorneys or law firms, standing alone, in reference to Tribal and State law. See where a State court determines that the because as used in the final rule, 25 U.S.C. 1903(6), (9). Comment: A few commenters stated Indian child has a sufficient pre-existing ‘‘agencies’’ are presumed to have some that the definition should require a connection to a Tribal community. capacity to provide social services. ‘‘preexisting state’’ of custody prior to Indeed, Congress applied the ‘‘active Attorneys and others involved in court the child-custody proceeding, or require efforts’’ requirement to Indian children proceedings are addressed separately in various provisions in the final rule. custody for a certain period of time. residing outside of a reservation, and it Response: The final rule does not add can be presumed that Congress 3. ‘‘Child-Custody Proceeding’’ the requested requirement for a understood that for reasons of distance See ‘‘Applicability’’ section below. ‘‘preexisting state’’ of custody because and age, some of these children may not there are situations in which a parent have yet developed extensive 4. ‘‘Continued Custody’’ and ‘‘Custody’’ could be considered to have had connections to their Tribal community. The final rule makes two changes custody but lost it for some period of Congress also found that State agencies from the proposed rule to the definition time prior to the child-custody and courts ‘‘have often failed to of ‘‘continued custody,’’ in response to proceeding, or may have had, at the recognize the essential tribal relations of comments. First, it clarifies that time of the commencement of the Indian people and the cultural and physical and/or legal custody may be proceeding, custody for only a brief social standards prevailing in Indian defined by applicable Tribal law or period of time. There is no evidence that communities and families.’’ 25 U.S.C. custom, or by State law. This comports Congress intended temporary 1901(5). In light of this, the Department with ICWA’s recognition that custody disruptions (e.g., surrender of child to finds that it would not comport with may be defined by any of these sources. another caregiver for a period) not to be congressional intent to require State See, e.g., 25 U.S.C. 1903(6). Second, it included in ‘‘continued custody.’’ The courts to assess an Indian child’s clarifies that an Indian custodian may Department believes that including this connection with her Tribal community. have continued custody, because the requirement could permit evasion of Nothing in the Act or these statute recognizes that Indian ICWA’s protections, since it could regulations forces the child to assume a custodians may have legal or physical create incentives to disrupt a parent’s new cultural identity or assume a custody of an Indian child and are custodial rights prior to initiating a relationship with a Tribe or Tribal entitled to ICWA’s statutory protections. child-custody proceeding. community that was not pre-existing. The definition of ‘‘custody’’ did not Comment: Some commenters ICWA applies only to Indian children substantively change from the proposed requested that the definition emphasize who have a political relationship (either rule. the narrow holding of the Supreme through their citizenship, or through the Comment: A few commenters Court in Adoptive Couple v. Baby Girl citizenship of a parent and their own suggested adding ‘‘Indian custodian’’ in as not applying to a parent that ‘‘at least eligibility for citizenship) with a addition to ‘‘parent’’ in the definition of had at some point in the past’’ custody federally recognized Indian Tribe. ‘‘continued custody.’’ of the child. 2. ‘‘Agency’’ Response: The final rule makes this Response: The proposed and final change, as discussed above. rule already defined ‘‘continued The final rule defines ‘‘agency’’ as an Comment: Several commenters custody’’ to include custody a parent organization that performs, or provides supported the ‘‘continued custody’’ ‘‘had at any point in the past,’’ which is services to biological parents, foster definition as clarifying that parents who substantively the same as the language parents, or adoptive parents to assist in, may never have had physical custody used by the Supreme Court in Adoptive the administrative and social work are nevertheless covered by ICWA if Couple v. Baby Girl. necessary for foster, preadoptive, or they had legal custody. A few Comment: Several commenters adoptive placements. The definition commenters suggested clarifications in suggested adding provisions to includes non-profit, for-profit, or light of the Supreme Court’s decision in ‘‘continued custody’’ allowing putative governmental organizations. This Adoptive Couple v. Baby Girl, 133 S. Ct. fathers to assert custodial rights. comports with the statute’s broad 2552 (2013), that the father in that case Response: Neither the statute nor the language imposing requirements on did not have legal or physical custody. final rule directly addresses the ability ‘‘any party’’ seeking placement of a One commenter requested that the final of putative fathers to assert custodial

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rights; in the final rule, custodial rights Some recommended changing the parent’s domicile when the parents are may be established under Tribal law or definition to the common-law definition unwed. custom or State law. of domicile. These commenters noted 6. ‘‘Emergency Proceeding’’ Comment: Several commenters that the common-law definition would supported the proposed definition of better consider persons who may leave The statute treats emergency ‘‘custody’’ as including Tribal law or the reservation temporarily (e.g., to proceedings differently from other Tribal custom. One commenter obtain education, pursue work, or enter child-custody proceedings. See 25 requested adding that ‘‘continued the military) and that the court in U.S.C. 1922. In response to comments custody,’’ like ‘‘custody,’’ is based on Holyfield stated that ‘‘domicile’’ is not that reflected a lack of clarity on this Tribal law or Tribal custom. Another necessarily synonymous with point, the final rule adds a definition of commenter suggested adding that State ‘‘residence.’’ One commenter suggested ‘‘emergency proceedings.’’ ‘‘Emergency law may only be used in the absence of changing ‘‘physical presence’’ to ‘‘was proceedings’’ are defined as court applicable Tribal law or Tribal custom. physically present’’ to account for this actions involving emergency removals Response: The final rule adds ‘‘under difference. A commenter stated that a and emergency placements. These any applicable Tribal law or Tribal person’s intent to return should be the proceedings are distinct from other custom or State law’’ to the definition of main focus. types of ‘‘child-custody proceedings’’ ‘‘continued custody’’ to better parallel Response: The final rule adopts the under the statute. While States use the definition of ‘‘custody.’’ The final commenters’ suggestions by revising the different terminology (e.g., preliminary rule does not establish an order of definition of ‘‘domicile’’ to better reflect protective hearing, shelter hearing) for preference among Tribal law, Tribal the common-law definition, which emergency hearings, the regulatory custom, and State law because the final acknowledges that a person may reside definition of emergency proceedings is rule provides that custody may be in one place but be domiciled in intended to cover such proceedings as established under any one of the three another. may necessary to prevent imminent sources. Comment: With regard to the second physical damage or harm to the child. See ‘‘Emergency Proceedings’’ section 5. ‘‘Domicile’’ part of the definition, addressing the domicile of the child, several below for more information and The final rule provides a more commenters stated that, in the case of an responses to comments. complete description of how to Indian child whose parents are not determine domicile for an adult, to 7. ‘‘Extended Family Member’’ married to each other, the domicile is better comport with Federal common This definition has not changed from not necessarily that of the Indian child’s law. The rule’s definition is consistent the proposed rule, and tracks the mother. These commenters pointed out with the definition of domicile provided statutory definition. that the father or a guardian may have by Black’s Law Dictionary, a standard Comment: A few commenters custody of the child, and some noted legal reference resource. The final rule suggested expanding the definition of that some Tribes are patriarchal and this also changes the definition of domicile ‘‘extended family member’’ to include definition would conflict with those for an Indian child whose parents are various other individuals (e.g., great- Tribes’ cultural traditions. Some stated not married to be the domicile of the grandparents, great-aunts, and great- that the domicile of the child in this Indian child’s custodial parent, in uncles). case should instead be the domicile of keeping with legal authority on this Response: The definition of the custodial parent with whom the point. ‘‘extended family member’’ in the Comment: With regard to the first part child lives most often and if the child proposed rule and final rule matches the of the definition of ‘‘domicile,’’ lives with neither parent, then the statutory definition. Additional addressing the domicile of ‘‘parents or domicile should be that of the mother or categories of individuals may be any person over the age of 18,’’ a the Indian child’s Tribe. Others stated included in the meaning of the term if commenter suggested replacing ‘‘any the domicile should be that of the the law or custom of the Indian child’s person over the age of 18’’ with ‘‘Indian custodial parent (or primary custodial Tribe includes them. ‘‘Extended family custodian.’’ parent), Indian custodian, or legal member’’ is not limited to Tribal Response: The final rule replaces guardian. citizens or Native individuals. ‘‘any person over the age of 18’’ with Response: The Supreme Court stated ‘‘Indian custodian’’ as suggested in this that a child born out of wedlock 8. ‘‘Hearing’’ comment because the context in which generally takes the domicile of his or See ‘‘Applicability’’ section below. the term ‘‘domicile’’ is used includes her mother. Holyfield, 490 U.S. at 43– 48. This rests on an underlying 9. ‘‘Imminent Physical Damage or only parents or Indian custodians Harm’’ (children are addressed in another part assumption that the mother is the of the definition). child’s custodial parent. This may The final rule does not provide a Comment: One commenter suggested generally be true at the time of the birth definition of ‘‘imminent physical that domicile should be defined by of the child. The general rule, however, damage or harm.’’ The Department has Tribal law or custom of the Indian is that a minor has the same domicile as determined that statutory phrase is clear child’s Tribe, and that a Federal the parent with whom he lives. See, e.g. and understandable as written, such definition should apply only in the Restatement (Second) of Conflict of that no further elaboration is necessary. absence of such law or custom. Laws 22 (Am. Law. Inst. 1971). As one The Department has concluded that Response: The U.S. Supreme Court State court recognized, where the father the definition it included in the found that Congress intended a uniform is the custodial parent, the child’s proposed rule, ‘‘present or impending Federal law of domicile for ICWA. See domicile is not that of the mother but risk of serious bodily injury or death,’’ Miss. Band of Choctaw Indians v. rather follows that of the custodial is too constrained and does not capture Holyfield, 490 U.S. 30, 44–47 (1989). parent. Tubridy v. Iron Bear (In re S.S.), circumstances that Congress would have Comment: Several commenters stated 657 NE.2d 935, 942 (Ill. 1995). Thus, the considered as presenting ‘‘imminent that the reliance on physical presence in final rule accepts the suggestion that the physical damage or harm.’’ Commenters the definition of domicile is too narrow. child’s domicile should be the custodial noted that situations of sexual abuse,

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domestic violence, or child labor denying Indian children the same level domestic violence, or child labor exploitation could arguably be excluded of protections as non-Indian children exploitation. by the proposed definition. The because research shows that exposure to The Department also agrees with Department did not, however, intend domestic violence produces significant commenters who emphasized that the that such situations would fall outside and long-lasting harm to the child section 1922 language focuses on the the scope of ‘‘imminent physical psychologically, even when the child imminence of the harm, because the damage or harm.’’ Since the statutory does not himself experience physical immediacy of the threat is what allows phrase reflects endangerment of the injury; and the State to temporarily suspend the child’s health, safety, and welfare, not • The proposed definition would initiation of a full ‘‘child-custody just bodily injury or death, the exclude some State and Federal crimes proceeding’’ subject to ICWA. Where Department has decided not to use the that would normally justify protection harm is not imminent, issues that might proposed definition. of the child. at some point in the future affect the The ‘‘imminent physical damage or Several other commenters supported Indian child’s welfare may be addressed harm’’ standard applies only to the proposed definition of ‘‘imminent either without removal, or with a emergency proceedings, which are not physical harm or damage,’’ to the extent removal on a non-emergency basis subject to the same procedural and it would apply to emergency situations. (complying with the Act’s section 1912 substantive protections as other types of These commenters asserted: requirements). We also agree with child-custody proceedings, as discussed • A narrow threshold for emergency commenters that being an Indian child in Section IV.H below. In using this removal is necessary because, in some on a reservation does not justify standard, Congress established a high jurisdictions, little more than being an emergency removal; Congress used the bar for emergency proceedings that Indian child on a reservation apparently standard of ‘‘imminent physical damage occur without the full suite of constitutes ‘‘imminent physical damage or harm’’ to guard against emergency protections in ICWA. There are or harm,’’ and the proposed definition removals where there is no imminent circumstances in which it may be would require a closer examination of physical damage or harm. appropriate to provide services to the whether the emergency removal was Comment: A few commenters stated that the only place ‘‘imminent physical parent or initiate a child-custody necessary; damage or harm to a child’’ appears in proceeding with the attendant ICWA • Not including minor physical harm ICWA is at section 1922, which protections (e.g., those in 25 U.S.C. 1912 or emotional harm is appropriate for addresses emergency removal only of and elsewhere in the statute), but emergency removal because a child children domiciled on a reservation, so removal or placement on an emergency experiencing those types of harm could it should not apply to State removal of basis is not appropriate. Thus, section be removed following the 1922 and these rules require that any children who are not domiciled on a commencement of a child-custody emergency proceeding must terminate reservation. proceeding rather than by emergency immediately when the emergency Response: The final rule is based on removal; and proceeding is not necessary to prevent the premise that the emergency removal • The proposed definition is in line imminent physical damage or harm to or placement of an Indian child may be with State laws that keep a child in his the child. This standard is substantially conducted under State law in order to or her home unless the child is in need similar to the emergency removal keep the child safe. See FR § 23.113. 25 of immediate protection due to an provisions of many states. See, e.g., W. U.S.C. 1922 requires, however, that any imminent safety threat. Va. Code 49–4–6–2 (2015); N.Y. Fam. emergency proceeding terminate Even among commenters that Ct. Act 1024 (McKinney 2009); Idaho immediately when such removal or supported the proposed definition, Code 16–1608 (2016); Texas Fam. Code placement is no longer necessary to many had suggested changes, such as: 262.104 (West 2015); N.J. Stat. Ann. 9:6– prevent imminent physical damage or • Clarifying that situations like sexual 8.29 (West. 2012); Va. Code Ann. 16.1– harm to the child. Both the legislative abuse would be grounds for emergency 251 (2015), Cal. Welf. & Inst. Code 305 history and the decisions of multiple removal; courts support the conclusion that this (West). • Comment: Many commenters opposed Including ‘‘serious emotional provision applies to emergency the proposed definition of ‘‘imminent damage’’ only if the child displays proceedings involving Indian children physical harm or damage’’ because they specific symptoms such as severe who are both domiciled off of the anxiety, depression or withdrawal; reservation and domiciled on the asserted: • • States should be able to define Clarifying ‘‘imminent’’ rather than reservation, but temporarily off of the imminent harm in accordance with their the degree of harm; and reservation. See H. Rep. No. 95–1386, at • State protection laws; Clarifying that imminent physical 25; see also Oglala Sioux Tribe v. • The proposed definition is too harm or damage is not present when the Hunnik, No. 13–5020, 2016 WL 697117 narrow in omitting neglect and implementation of a safety plan or (D.S.D. Feb. 19, 2016); In re T.S., 315 emotional or mental (psychological) intervention would otherwise protect P.3d 1030 (Okla. Civ. App. 2013); In re harm and would preclude emergency the child while allowing them to remain H.T., 343 P.3d 159, 167 n.3 (Mont. measures to protect a child from these in the home. 2015); Cheyenne River Sioux Tribe v. types of harms; Response: The final rule does not use Davis, 822 N.W.2d 62, 65 (S.D. 2012); • By requiring ‘‘serious’’ bodily the proposed definition of ‘‘imminent State ex rel. Children, Youth & Families injury, the proposed definition would physical damage or harm’’ because the Dep’t v. Marlene C. (In re Esther V.), 248 exclude physical harm such as domestic Department has concluded that the P.3d 863, 873 (N.M. 2011). Unless violence that does not rise to a major statutory phrase encapsulates a broader section 1922 is read to apply to children injury and exclude threatened physical set of harms than was reflected in the on and off of the reservation, ICWA harm (e.g., present or impending sexual proposed definition. The Department could be read to prohibit the emergency abuse, child labor exploitation, or agrees with commenters that the phrase removal of such Indian child in order to misdemeanor assaults); focuses on the child’s health, safety, and prevent imminent physical harm. See • The proposed definition would welfare, and would include, for e.g., H. Rep. 95–1386 (section 1922 is result in equal protection violations example, situations of sexual abuse, intended to ‘‘permit’’ such removal

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‘‘notwithstanding the provisions of this regardless of whether the child is 12. ‘‘Indian Custodian’’ title’’). allowed to be a member. The definition in the final rule largely 10. ‘‘Indian Child’’ Response: The statute defines ‘‘Indian tracks the statutory definition. It child’’ based on a political connection clarifies that whether an individual has The final rule retains the definition with the Tribe rather than residence or used in the statute with the addition of legal custody may be determined by participation in Tribal rituals and looking to either the relevant Tribe’s law the terms ‘‘citizen’’ and ‘‘citizenship’’ community. The regulation reflects the because these terms are synonymous or custom, or to State law. statutory definition. with ‘‘member’’ and ‘‘membership’’ in Comment: A few commenters stated the context of Tribal government. Comment: Several commenters their support of the definition of Comment: A commenter noted that requested clarification that the child ‘‘Indian custodian’’ and particularly the the regulations sometimes refer to the needs to be under age 18 only at the consideration of Tribal law or custom Indian child being ‘‘a member or eligible commencement of the initial child- because there are informal Indian for membership’’ without specifying custody proceeding for ICWA to apply caretakers who may raise Indian that if the child is not a member, then for the duration of the case. children without a court order. the child’s parent must be a member Response: ICWA defines an ‘‘Indian Response: Like the statute, the final and the child must be eligible for child’’ as a person under the age of 18. rule includes a definition of ‘‘Indian membership. Other Federal law allows for States custodian’’ that allows for consideration Response: The statute specifies that if receiving Federal funding to extend of Tribal law or custom. the child is not a Tribal member, then foster care to persons up to age 21. See 13. ‘‘Parent’’ the child must be a biological child of 42 U.S.C. 675(8)(B)(iii). And, the a member and be eligible for majority of States have statutes that The final rule retains the definition membership, in order for the child to be explicitly allow child-welfare agencies used in the statute. an ‘‘Indian child.’’ 25 U.S.C. 1903(4). to continue providing foster care to Comment: A few commenters The final rule addresses this oversight young people after they turn 18. See supported the definition of ‘‘parent’’ by clarifying in each instance that the Keely A. Magyar, Betwixt and Between and recommended no change. Several biological parent must be a member in But Being Booted Nonetheless: A commented on the definition’s approach addition to the child being eligible for Developmental Perspective on Aging to unwed fathers and suggested unwed membership. Out of Foster Care, 79 Temple L. Rev. biological fathers should be included. Comment: One commenter queried 557 (2006) (summarizing State laws). One commenter suggested adding that whether it is constitutional to include Where State and/or Federal law ‘‘parent’’ includes persons whose ‘‘eligible’’ children in the definition, provides for a child-custody proceeding paternity has been established by order since these children are not yet Tribal to extend beyond an Indian child’s 18th of a Tribal court, to ensure Tribal court members. birthday, ICWA would not stop orders acknowledging or establishing Response: The final rule reflects the applying to the proceeding simply paternity are given full faith and credit statutory definition of ‘‘Indian child,’’ because of the child’s age. This is to by State courts. A few commenters which is based on the child’s political ensure that a set of laws apply suggested adding that paternity may be ties to a federally recognized Indian consistently throughout a proceeding, acknowledged or established ‘‘in Tribe, either by virtue of the child’s own and also to discourage strategic behavior accordance with Tribal law, Tribal citizenship in the Tribe, or through a or delays in ICWA compliance in custom, or State law in the absence of biological parent’s citizenship and the circumstances where a child’s 18th Tribal law or Tribal custom.’’ child’s eligibility for citizenship. birthday is near. Thus, the final rule Response: The rule’s definition of Congress recognized that there may not interprets the statutory definition to ‘‘parent’’ mirrors that of ICWA. ICWA requires States to give full faith have been an opportunity for an infant mean that the person need be under the and credit to the public acts, records, or minor child to be enrolled in a Tribe age of 18 only at the commencement of and judicial proceedings of any Tribe prior to the child-custody proceeding, the proceeding for ICWA to apply. The applicable to Indian child-custody but nonetheless found that Congress had final rule adds clarification to the proceedings to the same extent that such the power to act for those children’s applicability section that ICWA will not entities give full faith and credit to any protection given the political tie to the cease to apply simply because the child other entity. 25 U.S.C. 1911(d). This Tribe through parental citizenship and turns 18. See FR § 23.103(d). the child’s own eligibility. See, e.g., H.R. includes Tribal acknowledgement or Rep. No. 95–1386, at 17. This is 11. ‘‘Indian Child’s Tribe’’ establishment of paternity. consistent with other contexts in which Comment: A few commenters The final rule retains the definition the citizenship of a parent is relevant to recommended adding a Federal used in the statute. the child’s political affiliation to that standard for what constitutes an sovereign. See, e.g., 8 U.S.C. 1401 Comment: One commenter stated that acknowledgment or establishment of (providing for U.S. citizenship for the definition of ‘‘Indian child’s Tribe’’ paternity, in accordance with Justice persons born outside of the United is too restrictive and could eliminate Sotomayor’s dissent in Adoptive Couple States when one or both parents are opportunities for multiple Tribes to be v. Baby Girl and to address a split in citizens and certain other conditions are involved in a case because a child could State courts. These commenters met); id. 1431 (child born outside the have equal contacts with multiple recommended language requiring an United States automatically becomes a Tribes for which they are eligible for unwed father to ‘‘take reasonable steps citizen when at least one parent of the membership, and each should have the to establish or acknowledge paternity’’ child is a citizen of the United States opportunity to ensure the connection is and recommended listing examples of and certain other conditions are met). maintained. such steps to include acknowledging Comment: One commenter stated that Response: The statute contemplates paternity in the action at issue and if the child grows up on the reservation that one Tribe will be designated as the establishing paternity through DNA and participates in Tribal rituals and ‘‘Indian child’s Tribe,’’ see 25 U.S.C. testing. Another commenter requested community, that child is an Indian child 1903(5), and the regulation reflects this. clarification on when the father must

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acknowledge or establish paternity, are included in the definition of child- of what is considered a contingency. A because timing impacts due process and custody proceedings, pursuant to 25 few other commenters suggested adding permanency for the child. U.S.C. 1903(1). more examples for what ‘‘upon Response: The final rule mirrors the Response: See the ‘‘Applicability’’ demand’’ means, to include ‘‘being statutory definition and does not discussion below. The final rule placed into custody’’ because the return provide a Federal standard for definition of ‘‘child-custody of the child upon demand is not a acknowledgment or establishment of proceeding’’ is updated to make clear reality when the end result is that the paternity. The Supreme Court and that its scope includes proceedings agency may remove the child. Some subsequent case law has already where a child is placed in foster care or commenters suggested ‘‘upon demand’’ articulated a constitutional standard another out-of-home placement as a should mean without having to resort to regarding the rights of unwed fathers, result of a status offense. This reflects legal proceedings or make a filing in see Stanley v. Illinois, 405 U.S. 645 the statutory definition of ‘‘child- court. (1972); Bruce L. v. W.E., 247 P.3d 966, custody proceeding,’’ which is best read Response: The final rule eliminated 978–979 (Alaska 2011) (collecting to include placements based on status the use of examples, and now refers cases)—that an unwed father who offenses, while explicitly excluding broadly generally to ‘‘formalities or ‘‘manifests an interest in developing a placement[s] based upon an act which, contingencies.’’ relationship with [his] child cannot if committed by an adult, would be 18. ‘‘Voluntary Placement,’’ ‘‘Voluntary constitutionally be denied parental deemed a crime. See 25 U.S.C. 1903(1). Proceeding,’’ and ‘‘Involuntary status based solely on the failure to 16. ‘‘Tribal Court’’ Proceeding’’ comply with the technical requirements for establishing paternity.’’ Bruce L., 247 The final rule retains the definition Comment: A few commenters P.3d at 978–79. Many State courts have used in the statute. requested clarifying the difference held that, for ICWA purposes, an unwed Comment: A few commenters between a ‘‘voluntary placement’’ and a father must make reasonable efforts to suggested changing the definition of ‘‘voluntary proceeding.’’ Response: The final rule distinguishes establish paternity, but need not strictly ‘‘Tribal court’’ to explicitly recognize the terms by eliminating the definition comply with State laws. Id. At this time, that the Tribal governing body, such as for ‘‘voluntary placement’’ and the Department does not see a need to the Tribal council, may sit as a court including only a definition of establish an ICWA-specific Federal and have jurisdiction over child-custody proceedings. Commenters also ‘‘voluntary proceeding.’’ For clarity, the definition for this term. rule also includes a definition of Comment: One commenter suggested suggested that the term ‘‘Tribal court’’ ‘‘involuntary proceeding.’’ The term accounting for situations where should reflect that a Tribe may have ‘‘voluntary placement’’ is now used extended family and non-relatives are other mechanisms for making child- only in FR § 23.103(b), addressing what exercising both physical and legal custody decisions. the rule does not apply to. The rule does custody of the child, by adding that an Response: The definition of ‘‘Tribal not apply to voluntary placements when Indian child may have several parents court’’ in both the statute and the final the parent or Indian custodian can simultaneously if Tribal law so rule addresses these comments because regain custody of the child upon verbal provides. the definition includes any other demand without any formalities or Response: The definition of ‘‘parent’’ administrative body of a tribe vested contingencies. includes adoptions under Tribal law or with authority over child-custody proceedings. See 25 U.S.C. 1903(12); 25 Comment: A few commenters custom. suggested changing the definition of Comment: One commenter suggested CFR 23.2. ‘‘voluntary placement’’ from a deleting the word ‘‘lawfully’’ from the 17. ‘‘Upon Demand’’ placement that ‘‘either parent’’ has definition of ‘‘parent’’ to avoid disputes The term ‘‘upon demand’’ is chosen to instead be a placement that over what constitutes a lawful adoption. Response: The final rule retains the important for determining whether a ‘‘both known biological parents’’ have word ‘‘lawfully’’ because it is used in placement is a ‘‘foster-care placement’’ chosen. One commenter suggested the statute. See 25 U.S.C. 1903. (because the parent cannot have the addressing the situation where one child returned upon demand) under parent refuses consent, by adding ‘‘if 14. ‘‘Reservation’’ § 23.2, and therefore subject to either parent refuses to consent to the The definition in the final rule tracks requirements for involuntary placement, the placement shall not be the statutory definition. proceedings for foster-care placement. considered voluntary.’’ Comment: Two commenters stated The rule also specifies that other Response: The proposed rule allowed that ‘‘reservation’’ should be expanded placements where the parent or Indian for ‘‘either parent’’ to choose the to include traditional Tribal territories custodian can regain custody of the placement to address situations where in Alaska because there is only one child upon demand are not subject to only one parent is known or reachable. reservation in Alaska. ICWA. FR § 23.103(b)(4). The final rule The final rule adds ‘‘both parents’’ to Response: The regulatory definition is clarifies that ‘‘upon demand’’ means allow for situations where both parents similar to the statutory definition, and that custody can be regained by a verbal are known and reachable. The final rule includes land that is held in trust but request, and ‘‘without any formalities or does not add that ‘‘if either parent not officially proclaimed a contingencies.’’ Examples of formalities refuses to consent to the placement, the ‘‘reservation.’’ or contingencies are formal court placement shall not be considered proceedings, the signing of agreements, voluntary’’ because in some cases, 15. ‘‘Status Offenses’’ and the repayment of the child’s efforts to find the other parent may be This definition was not changed from expenses. unsuccessful. If a parent refuses to the proposed rule. Comment: A commenter stated that consent to the foster-care, preadoptive, Comments: Some commenters the example ‘‘repaying the child’s or adoptive placement or termination of supported the definition of ‘‘status expenses’’ should be deleted from the parental rights, the proceeding would offenses.’’ Commenters also asked that definition of ‘‘upon demand’’ because it meet the definition of an ‘‘involuntary the final rule clarify that status offenses could unnecessarily limit interpretation proceeding.’’ Nothing in the statute

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indicates that the consent of one parent of what the best interests of an Indian Congress, however, also recognized eliminates the rights and protections child may be in that child-custody that talismanic reliance on the ‘‘best provided by ICWA to a non-consenting situation. Some recommended a interests’’ standard would not actually parent. variation on the definition of ‘‘best serve Indian children’s best interests, as Comment: A few commenters interest’’ found in Wisconsin’s Indian that ‘‘legal principle is vague, at best.’’ requested clarification that a placement Child Welfare Act. Another commenter H.R. Rep. No. 95–1386, at 19. Congress made only upon the threat of losing suggested defining best interest ‘‘in understood, as did the Supreme Court, custody is not ‘‘voluntary,’’ stating that accordance with the child’s indigenous that ‘‘judges [] may find it difficult, in they are aware of instances in which a culture, traditions and customs.’’ utilizing vague standards like ‘the best State agency threatens parents with Response: It is unnecessary to define interests of the child’, to avoid decisions removal of their children if they do not the term ‘‘best interests’’ because it does resting on subjective values.’’ Id. (citing ‘‘voluntarily’’ place the child elsewhere not appear in the final rule. Smith v. Org. of Foster Families for and then argue that these are ‘‘voluntary Comment: Many commenters, without Equality & Reform, 431 U.S. 816, 835 placements’’ under ICWA. specifically defining what ‘‘best n.36 (1977)). These subjective values are Response: The final definition of interests’’ means, argued that various exactly what Congress passed ICWA to ‘‘voluntary proceeding’’ specifies that provisions of the proposed rule would address, as demonstrated by the placements where the parent agrees to act to prohibit a judge from protecting legislative history discussed above. the placement only under threat of the ‘‘best interests’’ of the child. Instead of a vague standard, Congress losing custody is not ‘‘voluntary,’’ by Response: The Department disagrees provided specific procedural and adding the phrase ‘‘without a threat of with these comments, as ICWA was substantive protections through pre- removal by a State agency.’’ The final specifically designed to protect the best established, objective rules that avoid rule also specifies that a voluntary interests of Indian children. 25 U.S.C. decisions being made based on the proceeding must be of the parent’s or 1902. In order to achieve that general subjective values that Congress was Indian custodian’s free will. This goal, Congress established specific worried about. By providing courts with revision is intended to clarify that a minimum Federal standards for the objective rules that operate above the proceeding in which the parent agrees removal of Indian children from their emotions of individual cases, Congress to an out-of-home placement of the families and the placement of such was facilitating better State-court child under threat that the child will children in foster or adoptive homes practice on these issues and the otherwise be removed is not which will reflect the unique values of protection of Indian children, families, ‘‘voluntary.’’ Indian culture. Id. Congress and Tribes. See National Council of Comment: A commenter suggested implemented the general goal of Juvenile and Family Court Judges, replacing ‘‘voluntary placement’’ with protecting the best interests of children Adoption and Permanency Guidelines: ‘‘voluntary foster-care placement or through specific provisions that are Improving Court Practice in Child Abuse termination of parental rights’’ designed to protect children and their and Neglect Cases 14 (2000). (excluding adoptive placements) to relationship with their parents, While ICWA and this rule provide track the language in 25 U.S.C. 1913. extended family, and Tribe. objective standards, however, judges Response: The final rule now defines One of the most important ways that may appropriately consider the the term ‘‘voluntary proceeding,’’ which ICWA protects the best interests of particular circumstances of individual includes foster-care, preadoptive, and Indian children is by ensuring that, if children and protect the best interests of adoptive placements and termination of possible, children remain with their those children as envisioned by parental rights. parents and that, if they are separated, Congress. Comment: A commenter suggested support for reunification is provided. changing ‘‘chosen for’’ to ‘‘consented This is consistent with the guiding b. Other Suggested Definitions to’’ because it could be erroneously principle established by most States for Several commenters suggested adding interpreted as providing that the determining the best interests of the new definitions, including the parents’ choice can override the child. See U.S. Dept’ of Health and following. placement provisions in 25 U.S.C. 1915, Human Servs., Children’s Bureau, Child Comment: ‘‘Abandon’’—One which apply in all adoption proceedings Welfare Information Gateway, commenter suggested adding a (voluntary and involuntary). Determining the Best Interests of the definition for abandon to address the Response: This suggestion was Child (2013) at 2 (identifying the Supreme Court’s determination that adopted. The distinguishing factor for a ‘‘importance of family integrity and ICWA does not apply to ‘‘a parent [who] ‘‘voluntary proceeding’’ is the parent(s) preference for avoiding removal of the has abandoned a child prior to birth and or Indian custodian’s consent, not child from his/her home’’ as by far the the child has never been in the Indian whether they personally ‘‘chose’’ the most frequently stated guiding parent’s legal or physical custody.’’ See placement for their child. principle). Should a child need to be Adoptive Couple v. Baby Girl, 133 S. Ct. removed from her family, however, at 2563. This commenter notes that 19. Suggested New Definitions ICWA’s placement preferences continue ‘‘abandon’’ is a term of art that varies a. ‘‘Best Interests’’ to protect her best interests by favoring greatly from State to State. Comment: Several commenters placements within her extended family Response: The final rule does not requested that a definition of ‘‘best and Tribal community. Other ICWA define the term ‘‘abandon’’ because it is interests of the Indian child’’ be added provisions also serve to protect a child’s not used in the Act or final regulations. because State courts have used a general best interests by, for example, ensuring Comment: ‘‘Guardianship’’—A few ‘‘best interest of the child’’ that a child’s parents have sufficient commenters suggested adding a determination to avoid application of notice about her child-custody definition for ‘‘guardianship if resulting ICWA. These commenters point out that proceeding and an ability to fully from placement involving an agency or ICWA provides a framework to ensure participate in the proceeding (25 U.S.C. private adoption attorney.’’ These the long-term (for the Indian child’s 1912(a),(b),(c)) and helping an adoptee commenters believe such a definition is entire life) best interests of an Indian access information about her Tribal necessary because agencies have child, rather than just a short-term view connections (25 U.S.C. 1917). instructed families to obtain

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guardianship of children to avoid notice ‘‘Indian family’’ as including at least Comment: ‘‘State courts’’—One to Tribes and allow time to pass in one parent meeting the definition of commenter suggested adding a which to bond with the children prior ‘‘Indian’’ for reasons similar to those definition of ‘‘State courts’’ to include to giving notice to the Tribe or filing a forming the basis for the request for a all officers of the court, to clarify that all petition to adopt, in order to avoid definition of ‘‘Indian home.’’ One legal professionals must comply with ICWA’s placement preferences. commenter stated that it witnessed a ICWA. Response: The final rule does not add State agency take the position that a Response: The final rule does not add a definition for ‘‘guardianship’’ because non-Indian foster family was an Indian a definition for ‘‘State courts’’ because the term ‘‘guardianship’’ is not used in family due to a vague connection to a the term is adequately clear. the final rule. The statute defines Tribe. Comment: ‘‘Indian organization’’—A ‘‘foster-care placement’’ as including Response: The Department declines to commenter suggested moving the any action removing an Indian child add a definition of this term because it definition for ‘‘Indian organization’’ to from its parent or Indian custody for finds that the meaning of the term in the § 23.2 (from § 23.102). temporary placement in the . . . home statute and regulations is adequately Response: The definition of ‘‘Indian of a guardian or conservator where the clear. The term ‘‘Indian family’’ is found organization’’ in § 23.102 applies only to parent or Indian custodian cannot have in 25 U.S.C. 1915(a), which includes subpart I of part 23 because a different the child returned upon demand. 25 ‘‘other Indian families’’ in the meaning of the term ‘‘Indian U.S.C. 1903(1). Where a guardianship placement preferences. The term organization’’ related to eligibility of meets these criteria, it is subject to ‘‘Indian’’ is defined by statute, see 25 grants applies to other subparts of part applicable ICWA requirements for U.S.C. 1903(3), and the term ‘‘Indian 23. For this reason, the final rule defines child-custody proceedings. The family’’ in this context thus refers to a the term at § 23.102 with a definition discussion on applicability, below, family with one or more individuals that applies only to subpart I. addresses guardianships in voluntary that meet this definition. The term Comment: ‘‘Tribal Representative’’— proceedings. ‘‘Indian family’’ is also found in 25 Several commenters requested that the Comment: ‘‘ICWA-Compliant U.S.C. 1912(d) (requiring active efforts final rule add a definition of ‘‘Tribal Placement’’—A few commenters designed to prevent the breakup of the representative’’ or ‘‘Tribal designee’’ to recommended adding a definition of an Indian family), and it is clear from remove restrictions on Tribes ‘‘ICWA-compliant placement’’ to mean context that this means the Indian participating in ICWA proceedings via only those placements in accordance child’s family. See also the discussion of non-attorney representatives. These with the placement preferences in the existing Indian family exception in commenters asserted that the final rule section 1915. One commenter suggested the Applicability section. must require States to allow non- excluding all placements that are Comment: ‘‘Indian’’—One commenter attorney representatives because Tribes outside the identified placement stated that the term ‘‘Indian’’ is may not have the resources to send a preferences, regardless of whether there offensive and should instead be licensed attorney to appear in every has been a good cause finding to deviate ‘‘indigenous peoples’’ or ‘‘First proceeding in multiple courts and may from the placement preferences. Nations.’’ only be able to send social workers or Response: The final rule does not add Response: The term ‘‘Indian’’ is used court-appointed special advocates, and this term because it is not used in the in the statute; therefore, the regulation the rights and interests of the Tribe to regulation, and because the Department also uses this term. participate in ICWA proceedings believes that it could introduce Comment: ‘‘Party’’—A few outweigh the rights and interests of a confusion. The statute provides for commenters suggested adding a State with regard to requiring licensure certain placement preferences ‘‘in the definition of ‘‘party’’ for the purposes of by all who appear before the court. absence of good cause to the contrary.’’ section 1912 to include any party Commenters also stated that the new 25 U.S.C. 1915(a), (b). If a State court seeking foster-care placement or definition should clarify that even if the properly found good cause to not place termination of parental rights because Tribal representative is an attorney, the an Indian child with a preferred often these placements are made by State may not require licensure in the placement, the placement complies with individuals or attorneys rather than jurisdiction where the child-custody ICWA. agencies. A few other commenters proceeding is located. A commenter Comment: ‘‘Indian home’’—A few suggested adding a definition of ‘‘party’’ stated that appearing pro hac vice is commenters requested a definition for to exclude ‘‘de facto parents,’’ because often not a viable alternative because of ‘‘Indian home’’ stating that States in the these are generally foster parents who the cost, number of appearances, past have identified non-Indian foster do not have legal status on par with a requirements for local co-counsel, and families to be ‘‘Indian homes’’ by virtue parent or Indian custodian. ultimately the discretion of the State to of the Indian child being placed there. Response: State courts and Tribal deny the application to appear pro hac Response: The final rule includes a courts define the parties to a vice. definition of ‘‘Indian foster home,’’ a proceeding; therefore, the final rule does Response: The Department declines to term used in 25 U.S.C. 1915(b) and FR not add a definition for this term. The adopt the comments’ suggestion at this § 23.131. The statute already defines the Department notes, however, that the time. The suggested definition and term ‘‘Indian’’ as a person who is a statute and regulation define the term requirements for State courts were not member of a federally recognized Indian ‘‘parent’’ as meaning any biological included in the proposed rule, and the Tribe, or who is an Alaska Native and parent or parents of an Indian child or Department believes that it is advisable a member of a Regional Corporation as any Indian person who has lawfully to obtain the views of State courts and defined in 43 U.S.C. 1606. See 25 U.S.C. adopted an Indian child, including other interested stakeholders before 1903(3). The new definition simply adoptions under tribal law and custom. such provisions are included in a final clarifies that an ‘‘Indian foster home’’ is See 25 U.S.C. 1903(9); 25 CFR 23.2. rule. one in which one or more of the foster Thus, a ‘‘de facto parent’’ that does not The Department recognizes that it parents is an Indian. otherwise qualify under this definition may be difficult for many Tribes to Comment: ‘‘Indian family’’—A few would not be entitled to the rights a participate in State court proceedings, commenters requested a definition of ‘‘parent’’ is provided under ICWA. particularly where those actions take

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place outside of the Tribe’s State. ultimately decided to return the child to both ‘‘frustrates’’ ICWA’s purpose to Section 23.133 encourages State courts his parents. Thus, even though the ‘‘curtail state authorities from making to permit alternative means of action did not result in a foster-care child custody determinations based on participation in Indian child-custody placement, it may have culminated in misconceptions of Indian family life,’’ proceedings in order to minimize such a placement and, therefore, should In re A.J.S., 204 P.3d at 551 (citation burdens on Tribes and other parties. be considered a ‘‘child-custody omitted), and encroaches on the power The Department agrees with the practice proceeding’’ under the statute. of Tribes to define their own rules of adopted by the State courts that permit The final rule deletes as unnecessary membership. Tribal representatives to present before the use of the word ‘‘proceeding’’ as part the court in ICWA proceedings of the definition of child-custody 1. ‘‘Child-Custody Proceeding’’ and regardless of whether they are attorneys proceeding. It also explicitly excludes ‘‘Hearing’’ Definitions or attorneys licensed in that State. See emergency proceedings from the scope —‘‘Any proceeding or Action’’ of a child-custody proceeding, as e.g., J.P.H. v. Fla. Dep’t of Children & Comment: A few commenters emergency proceedings are addressed Families, 39 So.3d 560 (Fla. Dist. Ct. requested clarification of ‘‘any separately in the statute and in the rule. App. 2010) (per curiam); State v. proceeding or action.’’ A few The definition further makes clear that Jennifer M. (In re Elias L.), 767 N.W.2d commenters suggested clarifying that a 98, 104 (Neb. 2009); In re N.N.E., 752 a child-custody proceeding that may proceeding or action may include an ex N.W.2d 1, 12 (Iowa 2008); State ex rel. culminate in one outcome (e.g., a foster- parte placement, a court-ordered Juvenile Dep’t of Lane Cty. v. Shuey, 850 care placement) would be a separate placement or ‘‘any court hearing, P.2d 378 (Or. Ct. App. 1993). child-custody proceeding from one that may culminate in a different outcome proceeding, or action by an agency or C. Applicability (e.g., a termination of parental rights), court.’’ One commenter stated that The final rule clarifies the terms even though the same child may be ‘‘proceeding’’ should include any ‘‘child-custody proceeding’’ and involved in both proceedings. authorized use of State power that may ‘‘hearing.’’ Both of those terms were The final rule definition of ‘‘child- result in a parent losing custody of the used at various points in the draft rule, custody proceeding’’ is also updated to child and ‘‘action’’ to be the manner in but only ‘‘child-custody proceeding’’ make clear that its scope includes which such power is employed in was defined in the proposed rule. The proceedings involving status offenses if discrete instances of conduct (e.g., an comments demonstrated confusion any part of the proceeding results in the emergency removal would be an action). regarding the use of those terms. Thus, need for out-of-home placement of the Similarly, another commenter requested in order to be clearer about the child. This reflects the statutory clarification that ICWA applies to any distinctions made in certain provisions definition of ‘‘child-custody situation in which the State has taken of the rule between ‘‘child-custody proceeding,’’ which is best read to action involving an Indian child and proceedings’’ and ‘‘hearings,’’ the final include placements based on status there is a possibility that neither parent rule includes definitions for those offenses, while explicitly excluding will have custody. terms. placement[s] based upon an act which, Response: See the discussion above The final rule adds a definition of if committed by an adult, would be regarding the definition of ‘‘child- ‘‘hearing’’ that reflects the common deemed a crime. See 25 U.S.C. 1903(1). custody proceeding’’ and ‘‘hearing.’’ understanding of the term as used in a As discussed in more depth below, Further, whereas the draft rule stated legal context. As defined in the final the final rule also removes from the that a child-custody proceeding ‘‘means rule, a hearing is a single judicial regulatory text an explicit mention by and includes any proceeding or action session held for the purpose of deciding name of the so-called ‘‘existing Indian that involves’’ certain outcomes, the issues of fact or of law. That definition family’’ (EIF) exception: A judicially final rule uses only the word ‘‘action.’’ is consistent with the definition in created exception to ICWA’s In addition to the word ‘‘proceeding’’ Black’s Law Dictionary, a standard legal applicability that has since been being duplicative, the use of the term reference resource. In order to rejected by the court that created it. ‘‘action’’ is also more consistent with demonstrate the distinction between a Although the reference to the EIF the statute, as the statute uses that term hearing and a child-custody proceeding, exception by name was removed, the several times in its definition of ‘‘child- the definition of ‘‘child-custody final rule makes clear that the inquiry custody proceeding.’’ See 25 U.S.C. proceeding’’ explains that there may be into whether ICWA applies to a case 1903(1). multiple hearings involved in a single turns solely on whether the child is an —Guardianships child-custody proceeding. ‘‘Indian child’’ under the statutory Consistent with the proposed rule, the definition. The rule, consistent with the Comment: Several commenters final rule defines a ‘‘child-custody Act, thus focuses exclusively on a suggested clarifying whether ICWA proceeding’’ to be an activity that may child’s political membership with a applies to guardianships and culminate in foster-care placement, a Tribe, rather than any particular cultural conservators. A few commenters noted preadoptive placement, an adoptive affiliation. there have been various State placement, or a termination of parental The commenters who asserted that interpretations of this issue. Several rights. The final rule uses the phrase various ICWA provisions are commenters stated that the rule should ‘‘may culminate in one of the following inapplicable to some children who have explicitly apply to private outcomes,’’ rather than the less precise ‘‘assimilated into mainstream American guardianships in which someone phrase ‘‘involves,’’ used in the draft culture’’ are wrong under a plain assumes the role of caretaker without rule, in order to make clear that ICWA reading of the statute. In order to make State or Tribal intervention, so that the requirements would apply to an action this clear, the final rule prohibits action of placing the child would still be that may result in one of the placement consideration of listed factors because subject to ICWA. outcomes, even if it ultimately does not. they are not relevant to the inquiry of Response: The statute defines ‘‘child- For example, ICWA would apply to an whether the statute applies. The custody proceeding’’ to include removal action where a court was considering a inclusion of this prohibition prevents of an Indian child for temporary foster-care placement of a child, but application of any EIF exception, which placement in . . . the home of a

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guardian or conservator. 25 U.S.C. proceeding because in many cases the ‘‘adoptive placement’’ to include Tribal 1903(1)(i). The fact that an agency parents are not married. These customary adoptions in which there is places the child in the home of a commenters requested clarification that no termination of parental rights, when guardian or conservator rather than in a ICWA does not apply to custody cases such adoptions are conducted as part of foster home or institution does not affect between parents, regardless of whether a State-court proceeding. applicability of the Act, as such the custody case is within the context of Response: BIA does not believe that placement would be a ‘‘child-custody a divorce proceeding. the definition of a ‘‘child-custody proceeding.’’ Response: The Act does not include proceeding’’ needs to be adjusted to If a parent entrusts someone with the placement with a parent as an ‘‘Indian address these comments. Adoptions that care of the child without State or Tribal child-custody proceeding’’ because do not involve termination of parental involvement, that arrangement would ‘‘foster-care placement’’ does not rights are included within the definition not prohibit the parent from having the include placement with a parent. 25 of ‘‘child-custody proceeding’’ as either child returned upon demand, and U.S.C. 1903(1)(i). While the Act a ‘‘foster-care placement’’ or an therefore would not meet the definition specifically exempts from ICWA’s ‘‘adoptive placement,’’ because these of a ‘‘child-custody proceeding.’’ applicability awards of custody to one terms, as defined, do not require of the parents ‘‘in divorce proceedings,’’ termination of parental rights. See 25 —Custody Disputes Between Family the exemption necessarily includes U.S.C. 1903. Members awards of custody to one of the parents —Withdrawal of Consent as ‘‘Upon Comment: Several commenters stated in other types of proceedings as well. Demand’’ that the rule should include intra-family See, e.g., John v. Baker, 982 P.2d 738, disputes as a ‘‘child-custody 746–47 (Alaska 1999). For this reason, Comment: A few commenters proceeding’’ because a minority of State the final rule clarifies that ICWA does suggested that the ‘‘foster-care courts have excluded disputes where not apply to an award of custody to one placement’’ portion of the definition of the petitioner is a family member. of the parents, in a divorce proceeding ‘‘child-custody proceeding,’’ which Another commenter stated intra-family or otherwise. states that foster-care placement is when disputes should not be included as a If, however, the proceeding is one that the parent or Indian custodian ‘‘cannot ‘‘child-custody proceeding’’ and that the meets the definition of a ‘‘child-custody have the child returned upon demand’’ rule should clarify that ICWA is not proceeding,’’ in that the Indian child conflicts with section 1913 of the Act, about resolving grandparent custody has been removed from his or her parent which provides that the parent can battles. and any party seeks to place the Indian withdraw consent to a foster-care Response: The statute and final rule child in a temporary placement other placement. These commenters suggest exclude custody disputes between than the alternate parent, then adding the following language to the parents (see next response), but can provisions of ICWA and this rule would definition after ‘‘cannot have the child apply to other types of intra-family apply. See e.g., In re Jennifer A., 103 returned upon demand:’’ ‘‘(except as disputes, assuming that such disputes Cal. App. 4th 692, 700 (Cal. 2002) provided in § 103(b) [25 U.S.C. 1913(b)] otherwise meet the statutory and (finding that ICWA requirements of the Act).’’ See In re Adoption of regulatory definitions. ICWA can apply applied because the ‘‘issue of possible K.L.R.F., 515 A.2d 33 (Pa. Super. Ct. to other types of intra-family disputes foster-care placement was squarely 1986). because the statute makes only two before the juvenile court,’’ even though Response: The term ‘‘foster-care exceptions, neither of which are for the child was eventually placed with placement’’ as used in the Act includes intra-family disputes other than parental the noncustodial father). In addition, if only foster care where the parent cannot custody disputes. 25 U.S.C. 1903(1) a proceeding seeks to terminate the have the child returned ‘‘upon (ICWA does not apply to the custody parental rights of one parent, that demand.’’ The final rule clarifies the provisions of a divorce decree or to proceeding squarely falls within ICWA’s definition of ‘‘upon demand’’ to mean delinquency proceedings). While at definition of ‘‘child-custody simply a verbal demand without any least one court held that ICWA excludes proceeding.’’ See 25 U.S.C. 1903(1). formalities or contingencies. A parent’s intra-family disputes (see In re withdrawal of consent to a foster-care —Adoptions Without Termination of Bertelson, 617 P.2d 121, 125–26 (Mont. placement under section 1913 of the Act Parental Rights, Including Tribal 1980)), several subsequent court is also a situation where the parent Customary Adoptions decisions have ruled to the contrary. cannot have the child returned ‘‘upon See, e.g., Starr v. George, 175 P.3d 50 Comment: A commenter noted that demand’’ because the withdrawal of (Alaska 2008); In re Custody of A.K.H., while the definition of ‘‘child-custody consent must be more formal than a 502 N.W.2d 790, 794 (Minn. Ct. App. proceeding’’ is consistent with the mere verbal request. FR § 23.127. Truly 1993); In re Q.G.M., 808 P.2d 684, 687– definition of preadoptive placement in voluntary placements not covered by 88 (Okla. 1991); In re S.B.R., 719 P.2d § 1903(1), there are situations in which ICWA are those in which the parent can 154, 156 (Wash. Ct. App. 1986); A.B.M. preadoptive placements may occur have the child returned upon a mere v. M.H., 651 P.2d 1170, 1173 (Alaska without termination of parental rights verbal request, without any express or 1982). BIA has concluded that, if the under Tribal law or State law. This implied formalities or contingencies. intra-family dispute meets the definition commenter suggested adding that 2. Juvenile Delinquency Cases of a ‘‘child-custody proceeding,’’ the ‘‘child-custody proceeding’’ does not provisions of this rule would apply. preclude preadoptive placements after it Comment: Several commenters There is no general exception from has been determined that the child requested clarification on the interplay ICWA for actions by grandparents or cannot or should not be returned to the between PR § 23.102(a) and (e) as to other family members. home of his or her parents or Indian whether ‘‘juvenile delinquency custodian, but where termination of proceedings’’ are covered by ICWA, —Divorce Proceedings parental rights is not a prerequisite to noting that § 1903(1) of the statute states Comment: A few commenters stated the finalization of the adoption under that ICWA does not apply to placements that many custody cases do not occur State or Tribal law. Likewise, a few based on an act that would be deemed within the context of a divorce commenters requested expanding a crime if committed by an adult. These

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commenters requested clarification that commenters’ suggestion for ICWA commenters stated that the EIF ICWA would apply to placements based applicability where the proceeding has exception addresses whether ICWA may on ‘‘status offenses’’ (an act that would the ‘‘potential to result in’’ the need for be constitutionally applied to children not be deemed a crime if committed by foster care because this language is who are classified as ‘‘Indian’’ solely an adult, such as truancy or overly broad, in that nearly all status because of their heritage, when they incorrigibility). The proposed rule offense proceedings initially have a have no social, cultural, or political provided that ‘‘juvenile delinquency potential to result in foster care. The connection to a Tribe. One commenter proceedings’’ involving status offenses final rule’s language makes clear that if stated that ICWA assumes the parent are not covered by the Act, but one a child is placed in foster care or maintains social and cultural ties with commenter pointed out that in New another out-of-home placement as a the Tribe, and points to various York, juvenile delinquency proceedings, result of a status offense, that locations within the Act referring to by definition, exclude status offenses proceeding is an ICWA proceeding and prevailing standards of Indian because the term refers only to ICWA’s standards (e.g., notice, timing, communities, values of Indian culture, proceedings for youth who committed intervention) apply. and contacts with the Tribe. Another an act that would constitute a crime if Comment: One commenter requested commenter stated that the EIF exception committed by an adult. Another clarification as to whether foster care is is consistent with ICWA because commenter noted that the California intended to include facilities operated Congress was not concerned with Supreme Court has ruled that primarily for the detention of children children whose families were fully placements in delinquency proceedings who are determined to be delinquent. assimilated, lived far from Indian are presumptively exempt from ICWA, Response: A placement, including country, and maintained little contact but noted that an Indian child may be juvenile detention, resulting from status with the Tribe. This commenter stated placed in a foster home rather than a offense proceedings meets the statutory that ICWA cannot treat a child from a detention center as a result of definition of ‘‘foster-care placement’’ reservation the same as a child that delinquency proceedings. and such placement is therefore subject never lived near a reservation and that Response: The final rule deletes the to ICWA. has not been exposed to any Tribal term ‘‘juvenile delinquency 3. Existing Indian Family Exception culture. Another commenter argued that proceedings’’ and instead clarifies in FR the EIF exception must be available for § 23.103(a) that ICWA applies to Comment: A large number of families and children that choose not to proceedings involving acts that are commenters expressed their strong live on a reservation. status offenses (as defined in the rule to support of the proposed provision Response: Congress clearly defined be acts that would not be a crime if stating that there is no ‘‘existing Indian when ICWA would apply to a State committed by an adult) and in FR family exception’’ to ICWA. Many stated court child-custody proceeding—when § 23.103(b) that ICWA does not apply to that this judicially created exception has the child-custody proceeding involves proceedings involving criminal acts that denied ICWA protections to Indian an ‘‘Indian child’’ as defined by statute. are not status offenses. While ICWA children. These commenters stated that See, e.g., 25 U.S.C. 1903(1), 1903(4), does not apply to proceedings involving the clarification is a confirmation of the 1911, 1912, 1915. ‘‘Indian child’’ is non-status offense crimes, States may Supreme Court’s decision in Adoptive defined based on the child’s political nevertheless determine that it is Couple v. Baby Girl, and mirrors the affiliation with a federally recognized appropriate to notify the Tribe in these ‘‘overwhelming trend in State Indian Tribe. See 25 U.S.C. 1901 instances and provide other protections legislatures and courtrooms.’’ A few (defining ‘‘Indian child’’ as a Tribal to the parents and child. commenters stated that the clarification member or child of a Tribal member Comment: A commenter stated that is necessary for consistency because a who is eligible in a Tribe). The statute the final rule should clarify the Tribe small number of States are continuing to includes no provision for a court to has jurisdiction in cases in which the apply the exception, and parties determine the applicability of ICWA placement is based on a status offense, continue to argue in favor of its based on an Indian child’s or parent’s even in PL–280 States. application. These commenters note social, cultural, or geographic ties to the Response: If the placement is based that the exception inappropriately Tribe. To the contrary, Congress upon a status offense, ICWA provisions invites scrutiny into Indian culture and expressly recognized that State courts apply, regardless of whether the State is identity and allows a court to substitute and agencies often failed to recognize a PL–280 State. its judgment for a Tribe’s determination the essential tribal relations of Indian Comment: Several commenters of a child’s membership. A few people and the cultural and social recommended adding that ICWA commenters noted that the court that standards prevailing in Indian applies to ‘‘any placement of an Indian created the exception (Kansas Supreme communities and families. 25 U.S.C. child in foster care as a result of a Court) in 1982 has since rejected it. 1901(5). It would be illogical to read juvenile delinquency proceeding’’ or to Commenters also pointed out that into the statute a requirement that State proceedings that ‘‘have the potential to Congress identified ‘‘Indian child’’ as courts conduct the very inquiry that result in’’ (rather than ‘‘result in’’) the the threshold for ICWA applicability Congress determined they were often ill- need for foster care, preadoptive or and that the definition does not invite equipped to make. In re A.J.S., 204 P.3d adoptive placement or the termination State court investigation into a child’s at 551 (citation omitted). Reliance on of parental rights. Some commenters blood quantum, the extent to which the the EIF both ‘‘frustrates’’ ICWA’s suggested additional factors for ICWA parent or child is involved with the purpose to ‘‘curtail state authorities applicability to juvenile delinquency Tribal cultural or other activities, or from making child custody proceedings. stereotypical ideas of ‘‘Indian-ness.’’ determinations based on Response: The final rule continues to Other commenters opposed the misconceptions of Indian family life,’’ state that ICWA applies to any status rejection of the EIF exception. A few id. (citation omitted), and encroaches on offense proceeding that results in a stated that the Department lacks the the power of Tribes to define their own placement of the Indian child because of authority to override the interpretations rules of membership. the status offense. See FR § 23.103(a). of those remaining State courts that still As noted by a commenter, the court The final rule does not incorporate the apply the EIF exception. These that first created the EIF exception has

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since rescinded it. In re S.M.H., 103 from Indian country, and might only not substitute its own determination P.3d 976 (Kan. Ct. App. 2005). Only a maintain sporadic contact with the regarding a child’s citizenship in a handful of courts continue to recognize Tribe. For example, Congress expressly Tribe, a child’s eligibility for citizenship the exception (including only one of six distinguished between children in a Tribe, or a parent’s citizenship in appellate districts in California, domiciled on-reservation and off- a Tribe. Alabama, Indiana, Kentucky, Louisiana, reservation for the purposes of 4. Other Applicability Provisions Nevada, Missouri, Tennessee).7 In jurisdiction, and applied the vast contrast, a swelling chorus of other majority of ICWA provisions to off- Comment: Several commenters States have affirmatively rejected the reservation Indian children. For these recommended adding that ICWA EIF exception (including Alaska, reasons, the final rule continues to applies to any domestic-violence Arizona, Colorado, Idaho, Illinois, Iowa, clarify that there is no EIF exception to proceeding in which the Court restricts Michigan, Montana, New Jersey, New the application of ICWA. a parent’s access to the Indian child. York, North Carolina, North Dakota, The final rule no longer uses the Response: The final rule does not add Oklahoma, Oregon, South Dakota, nomenclature of the exception, and the suggested language because a Texas, Virginia and Utah).8 instead focuses on the substance, rather restriction of parental access to the child Those courts that have rejected the than the label, of the exception. Thus, under these circumstances may not EIF exception are correct. As explained the final rule imposes a mandatory meet the definition of a ‘‘child-custody above, ICWA applies to any child- prohibition on consideration of certain proceeding’’ under the Act. custody proceeding involving an Indian listed factors, because they are not Comment: One commenter suggested child. And where Congress intended a relevant to the inquiry of whether the clarifying that ‘‘foster care’’ includes categorical exemption, it provided one statute applies. If a child-custody any placement that may use Title IV–E expressly. Congress thus excepted from proceeding concerns a child who meets funding, since there are various the definition of a ‘‘child-custody the statutory definition of ‘‘Indian definitions of foster care. proceeding’’ ‘‘an award, in a divorce child,’’ then the court may not Response: The final rule’s definition proceeding, of custody to one of the determine that ICWA does not apply to of ‘‘foster-care placement’’ mirrors that parents’’ and also a ‘‘placement’’ the case based on factors such as the of the ICWA and generally includes resulting from a juvenile delinquency participation of the parents or the placements that use Title IV–E funding proceeding. 25 U.S.C. 1903(1). It Indian child in Tribal cultural, social, where parental rights have not been provided no such exception for cases religious, or political activities, the terminated. Comment: One commenter requested that, in a State court’s view, do not relationship between the Indian child clarification here, in addition to in the involve an ‘‘existing Indian family.’’ In and his or her Indian parents, whether definition of ‘‘Indian child,’’ that once addition, the Supreme Court did not the parent ever had custody of the child, ICWA applies, it applies throughout the adopt the EIF exception, even though or the Indian child’s blood quantum. One of the factors that the rule duration of the case, regardless of some parties urged the Court to adopt it prohibits a court from considering in whether the child turns 18. in the Adoptive Couple case. See determining whether ICWA will apply Response: The final rule adds Adoptive Couple v. Baby Girl, 133 S. Ct. to a proceeding is ‘‘the Indian child’s clarification to the applicability section at 2552. blood quantum.’’ FR § 23.103(c). That that ICWA will not cease to apply Congress did not intend to limit factor is intended to make clear that, in simply because the child turns 18. See ICWA’s applicability to those Tribal a case involving a child who meets the FR § 23.103(d). citizens actively involved in Indian statutory definition of an Indian child, Comment: One commenter questioned culture. Contrary to the commenters’ a court may not then go on to determine the provision stating that ICWA does assertions, Congress was concerned that ICWA should not apply to that not apply to Tribal court proceedings. with children whose families lived far proceeding because the child has a Response: Tribes may have their own certain blood quantum. That factor is, laws similar to ICWA, but the Federal 7 See, e.g., In re Alexandria Y., 53 Cal. Rptr. 2d 679 (Cal. Ct. App. 1996) (4th Dist.); Rye v. Weasel, however, not intended to prohibit a ICWA provides standards applicable 934 S.W.2d 257 (Ky. 1996); Hampton v. J.A.L., 27– court from examining a child’s blood only to State-court proceedings (except 869 (La. App. 2 Cir. 7/6/95); 658 So. 2d 331; C.E.H. quantum for the limited purpose of for provisions regarding transfer of v. L.M.W., 837 S.W.2d 947 (Mo. Ct. App. 1992); In determining whether the child meets jurisdiction to Tribal court or Tribal re Morgan, No. 02A01–9608–CH–00206, 1997 WL 716880 (Tenn. Ct. App. Nov. 19, 1997); S.A. v. the statutory definition of ‘‘Indian intervention). child,’’ if a Tribe does not respond to E.J.P., 571 So. 2d 1187 (Ala. Civ. App. 1990); In re D. Inquiry and Verification Adoption of T.R.M., 525 N.E.2d 298, 303 (Ind. requests for verification of a child’s 1988); In re N.J., 221 P.3d 1255 (Nev. 2009). citizenship or eligibility for citizenship. The applicability of ICWA to a child- 8 See, e.g., In re Alexandria P., 176 Cal. Rptr. 3d In that limited circumstance, a State custody proceeding turns on the 468, 484–86 (Cal. Ct. App. 2014); J.W. v. R.J., 951 P.2d 1206 (Alaska 1998); Michael J., Jr. v. Michael court may review whether the child is threshold question of whether the child J., Sr., 7 P.3d 960 (Ariz. Ct. App. 2000); In re N.B., eligible under a Tribe’s citizenship in the case is an Indian child. It is, No. 06CA1325 (Colo. Ct. App. Sept. 6, 2007); In re criteria. Likewise, in that limited therefore, critically important that there Baby Boy Doe, 849 P.2d 925 (Idaho 1993); In re S.S., instance, and if the Tribe’s criteria be an inquiry into that threshold issue 657 N.E.2d 935 (Ill. 1995); In re R.E.K.F., 698 as soon as possible. If this inquiry is not N.W.2d 147 (Iowa 2005); In re Elliott, 554 N.W.2d necessitates examining blood quantum 32 (Mich. Ct. App. 1996); In re Riffle, 922 P.2d 510 to determine citizenship or eligibility, timely, a child-custody proceeding may (Mont. 1996); In re Child of Indian Heritage, 543 then the State court may consider blood not comply with ICWA and thus may A.2d 925 (N.J. 1988); In re Baby Boy C., 805 quantum for the purpose of making a deny IWCA protections to Indian N.Y.S.2d 313 (N.Y. App. Div. 2005); In re A.D.L., children and their families. The failure 612 S.E.2d 639 (N.C. Ct. App. 2005); In re A.B., 663 determination as to whether the child is N.W.2d 625 (N.D. 2003); In re Baby Boy L., 103 P.3d eligible for citizenship and therefore an to timely determine if ICWA applies 1099 (Okla. 2004); Quinn v. Walters, 881 P.2d 795 ‘‘Indian child’’ under the statute. If the also can generate unnecessary delays, as (Or. Ct. App. 1994); In re Baade, 462 N.W.2d 485 Tribe responds to requests for the court and the parties may need to (S.D. 1990); In re W.D.H., III, 43 S.W.3d 30 (Tex. redo certain processes or findings under App. 2001); In re D.A.C., 933 P.2d 993 (Utah Ct. verification of the child’s citizenship or App. 1997); Thompson v. Fairfax County Dep’t of eligibility for citizenship, the court must the correct standard. This is inefficient Family Servs., 747 S.E.2d 838 (Va. Ct. App. 2013). accept the Tribe’s verification and may for courts and parties, and can create

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delays and instability in placements for in the proceeding once the court 1. How To Contact a Tribe the Indian child. confirms that the child actually is an Comment: One commenter stated that The final rule, therefore, requires Indian child. Notably, the early the information in PR § 23.104 (now courts to inquire into whether a child is application of ICWA’s requirements— located in FR § 23.105) on how to an Indian child at the commencement of which are designed to keep children, contact a Tribe is helpful to assist in a proceeding. The court is to ask each when possible, with their parents, compliance. Several Tribal commenters participant in the proceeding, including family, or Tribal community—should recounted their experiences in having attorneys, whether they know or have benefit children regardless of whether it notices sent to various addresses other reason to know that the child is an turns out that they are Indian children. than the designated Tribal agent address Indian child. Such participants could The determination of whether a child also include the State agency, parents, is an Indian child turns on Tribal listed in the Federal Register. A few the custodian, relatives or trial citizenship or eligibility for citizenship. commenters requested that BIA do more witnesses, depending on who is The final rule recognizes that these to keep the list of designated ICWA involved in the case. Further, determinations are ones that Tribes agents up-to-date. recognizing that facts change during the make in their sovereign capacity and A State commenter requested course of a child-custody proceeding, requires courts to defer to those revisions to clarify that BIA publishes courts are to instruct the participants to determinations. The best source for a the ‘‘official’’ list of contacts in the inform the court if they subsequently court to use to conclude that a child or Federal Register, and to require BIA to learn information that provides reason parent is a citizen of a Tribe (or that a make the list available on its Web site to know the child is an Indian child. child is eligible for citizenship) is a with updates provided by Tribes Thus, if the State subsequently contemporaneous communication from between official Federal Register discovers that the child is an Indian the Tribe documenting the publications. A few commenters child, for example, or if a parent enrolls determination. Thus, if the court has requested making the list easier to use, the child in an Indian Tribe, they will reason to know that a child is a member by including historical Tribal need to inform the court so that the of a Tribe, it should confirm that due affiliations to facilitate notification of proceeding can move forward in diligence was used to identify and work the correct Tribe or by grouping by compliance with the requirements of with the Tribe to verify whether the Tribal heritage (e.g., Chumash, Pomo) in ICWA. child is a citizen (or a biological parent addition to their specific band. ICWA’s notice provisions are is a citizen and the child is eligible for Response: In conjunction with this triggered if a court ‘‘has reason to know’’ citizenship). final rule, BIA is working to make its list that a child is an Indian child. 25 U.S.C. The final rule does, however, allow a of designated ICWA officials more user- 1912(a). The final rule, therefore, uses court to rely on facts or documentation friendly and maintaining an updated list the statutory language ‘‘reason to indicating a Tribal determination such on its Web site. know,’’ rather than ‘‘reason to believe,’’ as Tribal enrollment documentation. Comment: One commenter suggested as was used in the proposed rule. This This provision was added to the final that States be required to maintain a list is to be more consistent with the rule in response to comments noting of the ICWA contacts for Tribes in their statutory text and to be clear that the that sometimes Tribes are slow to State. rule does not set a different standard for respond to inquiries seeking verification Response: The Department triggering notice than what is provided of Tribal citizenship. It also reflects the encourages States to maintain a list of for in ICWA. The final rule does, fact that it may be unnecessary to obtain designated ICWA officials of Tribes in however, provide specific guidance verification from a Tribe, if sufficient their States, but the final rule does not regarding what constitutes ‘‘reason to documentation is already available to require that they do so. know’’ that a child is an Indian child. demonstrate that the Tribe has Comment: One commenter stated that The court would have reason to know concluded that a parent or child is a the court should call Tribes for court that a child was an Indian child if, for citizen of the Tribe or the child is hearings. example, it was informed that the child eligible for citizenship. Response: The final rule does not lives on a reservation or has been a ward The proposed rule included a require this. of a Tribal court. suggested requirement that State Comment: One commenter If the court has reason to know that agencies provide courts with genograms recommended changing the rule to read a child is an Indian child, then the court and other specifically-listed information you ‘‘should’’ seek BIA assistance in is to treat the child as an Indian child in order to inform the court about contacting the Tribe if you do not have unless and until it determines that the whether a child is an Indian child. The accurate contact information or the child is not an Indian child. This final rule does not include that Tribe fails to respond, rather than requirement ensures that ICWA’s suggestion, as the Department has ‘‘may,’’ to avoid providing too much requirements are followed from the determined that suggestions on how leeway. early stages of a case. It is also intended agencies may conduct inquiries are Response: The final rule adopts this to avoid the delays and duplication that more appropriate for guidance than suggestion and changes the language to would result if a court moved forward regulation. ‘‘should.’’ See FR § 23.105(c). with a child-custody proceeding (where The final rule also includes there is reason to know the child is an provisions that are designed to assist 2. Inquiry Indian child) without applying ICWA, courts and others in contacting Tribes to Comment: Many commenters stated only to get late confirmation that a child obtain verification of citizenship or that the provisions requiring early is, in fact, an Indian child. For example, eligibility of citizenship. In addition, identification of Indian children will be it makes sense to place a child that the BIA is available to assist in contacting particularly helpful. These commenters court has reason to know is an Indian Tribes and is taking steps to facilitate stated that children and families are too child in a placement that complies with the ease of contact. For example, BIA often denied ICWA protections because ICWA’s placement preferences from the has compiled a list of designated Tribal a court or agency did not ask whether start of a proceeding, rather than having ICWA officials and is working to make the child was Indian. These commenters to consider a change a placement later that list more user-friendly. stated that a failure to ask whether a

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child is an Indian child risks the Indian Asking if every child is subject to ICWA statutory language as to whether there is children not being identified at all, ensures that ICWA is implemented early knowledge or a ‘‘reason to know’’ the creates a risk of insufficient efforts to on where applicable and thereby avoids child is an ‘‘Indian child.’’ reunify the family, delay, or repetition the problems and inefficiencies Comment: A few commenters stated in court proceedings, and increases the generated by late identification that that the regulations should be clear risk of placement instability. They noted ICWA is applicable to a particular case. about whom, at a minimum, agencies that early identification is a best Comment: Several commenters stated should ask about the child’s ancestry practice that will promote placement that PR § 23.103(c) and § 23.107, which (e.g., parents, custodians, other relatives stability for children. require agencies and courts to ask that have a close relationship with the Commenters also supported the whether the child ‘‘is or could be an child), what should be asked (any requirement that the courts ask every Indian child’’ or whether there is potential Indian heritage that could party, on the record, whether there is ‘‘reason to believe that the child is an indicate citizenship or eligibility) and reason to believe the child is an Indian Indian child’’ are overly broad and when the questions should be asked (at child. Commenters relayed their apply when the child could become an a minimum, the onset of each new experiences with child-welfare agencies Indian child. These commenters stated proceeding). Likewise, commenters inadvertently failing to apply ICWA. A that determining whether ICWA applies asserted that State courts need commenter noted that there is a and requiring notices to Tribes is specificity as to what will satisfy the tendency for those who are expensive, time consuming, and causes investigation requirements. geographically proximate to Tribal lands undue delay, especially when a parent A few commenters stated their to make greater efforts to comply with has only a vague notion of a distant support for requiring certification on the ICWA despite the fact that 78 percent of Tribal ancestor, and when the Tribe record of whether the child is an Indian Native Americans do not live on Tribal does not require the parent to be a child, to hold those responsible for the lands. The National Council of Juvenile citizen for the child to be eligible for inquiry accountable. A commenter and Family Court Judges noted that they citizenship. Another commenter stated stated support of genograms and have long recommended this practice to that the rule should impose a greater ancestry charts as supporting social judges because failing to make the burden on State agencies to determine work practice and skills. The National necessary inquiries and notify the whether a child is eligible for Tribal Council of Juvenile and Family Court necessary parties, etc., can result in the citizenship. Other commenters noted Judges stated that the ICWA checklists case having to start over from the the discrepancy between the phrases it provides to judges and others also beginning. Commenters noted the ‘‘reason to believe’’ and the statutory recommend family charts or genograms importance of this provision because all phrase ‘‘reason to know.’’ be created to facilitate Tribal citizenship the rights and responsibilities of ICWA Response: The inquiry into whether a identification as a best practice. A few flow from the determination as to child is an ‘‘Indian child’’ under ICWA commenters suggested making it whether ICWA applies. is focused on only two circumstances: mandatory for State courts to require One commenter opposed the (1) Whether the child is a citizen of a agencies to provide the information, requirement to ask if every child is Tribe; or (2) whether the child’s parent while others opposed the requirement subject to ICWA as a ‘‘callous and is a citizen of the Tribe and the child is as putting an undue burden on courts unwarranted intrusion.’’ One also eligible for citizenship. For clarity, and agencies because the cost and time commenter opposed asking whether the the terminology ‘‘could be an Indian to investigate and prepare a history child is an ‘‘Indian child’’ in the context child’’ is deleted from the final rule and where there is no firm evidence of of adoption because it would make the final rule changes the language in Indian heritage will waste scarce adoption problematic by allowing the § 23.107(a) to reflect the statutory resources. Tribe to declare the child an ‘‘Indian language as to whether there is Several commenters opposed child.’’ knowledge or a ‘‘reason to know’’ the requiring genograms or ancestry charts Response: The Department agrees child is an ‘‘Indian child.’’ As discussed as a burden on courts, agencies, and with the comments that stress the above, the final rule also provides clear biological parents for voluntary importance of early inquiry into the guidance regarding when a court has adoptions. Commenters stated that applicability of ICWA. As discussed ‘‘reason to know’’ the child is an parents rarely have more than basic above, the rule requires such early ‘‘Indian child.’’ information even about their own inquiry. The final rule retains the Comment: Several commenters parents and said that requiring such requirement for State courts to ask in discussed the terminology in PR information will discourage adoption. A every proceeding whether the child is § 23.107 regarding inquiry into whether few commenters stated that the rule an ‘‘Indian child’’ because this inquiry the child ‘‘is an Indian child’’ or there imposes unfunded mandates by is necessary to determine if ICWA is ‘‘reason to believe’’ the child is an requiring States to create genealogies for applies. The inquiry is a limited, non- Indian child. A few commenters all children. A State agency commented burdensome imposition on State courts suggested changing the requirement to that the rule will create significant that is designed to ensure that they ask whether the child ‘‘is an Indian additional workload for it, State abide by Federal law and appropriately child’’ to a requirement to ask whether attorneys and courts without providing address key questions that go to the child ‘‘may be an Indian child.’’ increased funding, all while facing jurisdictional, procedural, and Alternatively, one commenter stated record-high numbers of reports, substantive requirements under ICWA. that the agency or court should be investigations and children in out-of- ICWA applies to children that meet the required to ask if the child ‘‘is an Indian home placement. Other commenters definition of an ‘‘Indian child’’ and child,’’ not if they have a ‘‘reason to stated that the logistics and standards imposes obligations on a court when it believe’’ the child is Indian—because imposed on State courts are knows or has reason to know that a the child may be Indian even if there is unworkable, labor-intensive, and child is an Indian child. In order for a no apparent ‘‘reason to believe.’’ extremely costly. Commenters also court to determine whether it has reason Response: As stated in the previous offered additional suggestions for to know that a child is an Indian child, response, the final rule changes the information courts may wish to consider the court needs to inquire into the issue. § 23.107(a) language to reflect the requiring agencies to provide in support

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of certification regarding whether there Response: The final rule replaces the stating that there is a reason to know the is information suggesting the child is an term ‘‘active efforts’’ with ‘‘due child is an Indian child if the child or Indian child. diligence’’ in the context of identifying parents are domiciled in a Response: The final rule directly the Tribes of which the child may be a predominantly Indian community, addresses courts only, as discussed citizen because ‘‘due diligence’’ is a confuses Tribal enrollment with race. above. It requires the court to ask all common term in child-welfare cases Response: The final rule no longer participants in the case whether there is with which practitioners are already uses the standard ‘‘predominantly reason to know the child is an Indian familiar. See FR § 23.107(b); see e.g., 42 Indian community,’’ as that phrase was child on the record. It does not, U.S.C. 671(a)(29) (specifying funding overbroad. Instead, the regulation states however, require the agency to provide requirement that within 30 days after that a court has reason to know that a genograms or other information that was the removal of a child from the custody child is an Indian child if the court is listed in the proposed rule, as the of the parent or parents of the child, the informed that the domicile or residence Department has determined that State shall exercise due diligence to of the child, the child’s parent, or the suggestions on how agencies may identify and provide notice to the child’s Indian custodian is on a conduct inquiries are more appropriate following relatives: All adult reservation or in an Alaska Native for guidance than regulation. grandparents, all parents of a sibling of Village. The regulation does not Comment: A few commenters the child, where such parent has legal presume that the child is an Indian suggested requiring the inquiry to be custody of such sibling, and other adult child if that provision is triggered; made, not only at each child-custody relatives of the child (including any rather, such domicile or residence is a proceeding, but also ‘‘at subsequent other adult relatives suggested by the factor that requires further investigation hearings’’ because children may become parents)). because it gives the court ‘‘reason to enrolled during this time. Comment: A few commenters know’’ that the child is an Indian child. Response: The final rule does not supported PR § 23.107(b) requiring If a child or the child’s parents reside require an inquiry at each hearing. certification on the record regarding on a Tribe’s reservation, it is reasonable Instead, it requires that the State court whether the child is an Indian child and to contact that Tribe to find out if the should instruct parties to inform it if recommended adding a requirement child is a citizen (or the child’s parent they later discover information that that the certification include is a citizen and the child is eligible). In information documenting diligent provides reason to know the child is an addition to reservations, the provision search efforts or ‘‘good faith effort’’ to Indian child. See FR § 23.107(a). This highlights Alaska Native Villages obtain information and all findings of instruction reflects that ICWA because Alaska is home to the search. These commenters also requirements apply throughout a child- approximately half the federally recommended providing copies of the custody proceeding, if a child is an recognized Indian Tribes, but there is certifications and documents to the Indian child. Thus, the instruction only a single reservation. Thus it is Tribe. similarly reasonable to contact the Tribe insures that if parties find out that there Response: The rule requires that, if is reason to know the child is an Indian associated with the Alaska Native the court has reason to know the child Village where the child or her parents child, the court will be informed and is an Indian child but does not have can then conduct the requisite inquiry reside. sufficient evidence to determine that the Comment: A commenter suggested and provide the appropriate ICWA child is or is not an ‘‘Indian child,’’ the adding a new § 23.107(c)(6) to state protections. And, if a new child-custody court must confirm that the agency or ‘‘[t]he child is or has been a ward of a proceeding is initiated for the same other party worked with Tribes to verify Tribal court’’ and a new § 23.107(c)(7) to child, the court should again inquire the child’s citizenship; the court will state ‘‘[e]ither parent or child possesses into whether there is reason to know necessarily require some evidence in the a Tribal membership card or certificate that the child is an Indian child. record to make that confirmation. See of Indian blood.’’ Comment: A few commenters FR § 23.107(b). Response: The final rule includes an suggested a requirement to proactively Comment: A few commenters stated identification card indicating discover whether there is a ‘‘reason to that the requirement in PR § 23.107(b) to citizenship in an Indian Tribe. See FR believe’’ the child is an ‘‘Indian child’’ work with ‘‘all Tribes’’ in which the § 23.107(c)(5)–(6). because parties could do nothing to child may be a citizen is overly Comment: A commenter stated that it discover and then truthfully certify they burdensome. may be duplicative to require the court have no reason to believe. Response: The final rule requires to ask whether a child is an Indian child Response: The final rule retains the State courts to confirm that the agency if it is already stated on record. provision at § 23.107 requiring State used due diligence to work with all Response: The inquiry may be courts to ask participants in the Tribes for which there is reason to know appropriate even if it has already been proceeding if they know or have reason the child may be a citizen. The established that the child is an ‘‘Indian to know that the child is an ‘‘Indian requirement does not mean an agency child’’ to ensure that all Tribes through child.’’ States or courts may choose to must work with all federally recognized which the child meets the definition of require additional investigation into Tribes because the reason to know will ‘‘Indian child’’ have been identified. whether there is a reason to know the indicate a certain Tribe or group of child is an Indian child, and may Tribes with which the child may have 3. Treating Child as an ‘‘Indian Child’’ choose to explain the importance of political affiliations. It is necessary to Pending Verification answering questions regarding whether work with all of the Tribes of which Comment: Several commenters stated the child is an Indian child. there is reason to know the child may their support for treating a child as an Comment: A few commenters stated be a citizen to identify the ‘‘Indian Indian child pending verification under that the term ‘‘active efforts’’ in PR child’s Tribe’’ as defined in the statute PR § 23.103(d), noting that it is a best § 23.107(b) should be replaced with and comply with statutory requirements practice to allow time for notice to the ‘‘actively sought’’ or ‘‘due diligence’’ to for notice and jurisdiction. Tribe and verification from the Tribe, avoid confusion with use of the phrase Comment: One commenter stated that keeps Indian children with their ‘‘active efforts’’ in the statute. the provision in PR § 23.107(c)(4), families and Tribes, and helps avoid

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multiple placements. California Indian and another stated that imposing Response: Under the statute, ICWA Legal Services noted that this approach obligations on the Tribe would expand requirements apply when the court and is consistent with California law. A few beyond the statute. A few commenters agency know or have a reason to know commenters stated that ICWA has been added that at some point, if the Tribe the child involved in the Indian child- viewed as the ‘‘gold standard of child- fails to respond, the court must be free custody proceeding is an Indian child. welfare practice’’ so there is no harm in to determine the child is not an Indian The applicability of ICWA can affect a temporarily applying ICWA standards to child. State court’s jurisdiction as well as the a child who may be Indian, even if it is Response: The rule requires that, if applicable law. Even if a party fails to ultimately determined that he or she is there is reason to know the child is an assert that ICWA may apply, the court not. Commenters stated that this Indian child, the court is to treat the has a duty to inquire as to ICWA’s provision will help prevent the child as an Indian child, unless and applicability to the proceeding. unpredictability that results where until it is determined on the record that ICWA is not applied at the outset and the child does not meet the definition of 4. Verification From the Tribe it is determined later that ICWA applies. an ‘‘Indian child.’’ The end point would Comment: Several commenters stated Several commenters opposed the be the court’s determination that the that requiring States to ‘‘obtain provision requiring treatment of a child child is not an Indian child. State courts verification’’ in PR § 23.107(a) is unfair as if ICWA applies. Some stated that it have discretion as to when and how to because it holds the States responsible will result in overbroad application in make this determination. If a Tribe fails even if the Tribe fails to respond. violation of children’s constitutional to respond to multiple repeated requests Several commenters stated that written rights because, without confirmation of for verification regarding whether a verification from the Tribe should not the political affiliation, it treats children child is in fact a citizen (or a biological be required and the parties should be as Indian children solely due to racial parent is a citizen and the child is free to produce, under rules of evidence, identification. A commenter noted that eligible for citizenship), and the agency whatever verification is available to this requirement places a large burden has repeatedly sought the assistance of allow the judge to determine whether on State agencies to provide active BIA in contacting the Tribe, a court may the evidence suffices. One commenter efforts for all possibly Indian children make a determination regarding whether stated that the requirement is unfair to when Tribes may take months to the child is an Indian child for purposes Tribes because it places the obligation respond to a request for verification. of the child-custody proceeding based on the Tribe to verify, and the Tribe may Another commenter stated that the on the information it has available. If lack the resources to respond to all provision removes any discretion from new evidence later arises, the court will requests for verification. A few provided the court and eliminates its role as fact- need to consider it and if he or she is alternate suggestions including finder because ‘‘any reason’’ is too broad an Indian child, ICWA applies. The requiring States to ‘‘solicit verification’’ and presumes the court is not capable Department encourages prompt or ‘‘seek verification.’’ Another of determining if the evidence is responses by Tribes, and encourages commenter suggested adding that sufficient to show the child is an Indian courts and agencies to include enough written notice to a Tribe is not sufficient child. One commenter suggested it will information in the requests for to meet the requirements, unless the be difficult to explain to the child that verification to allow the Tribes to notice results in verification. he or she is being treated as an Indian readily determine whether the child is Response: The final rule requires the child, especially when it is later a Tribal citizen (or whether the parent State court to ensure the agency worked discovered the child was not an Indian is a Tribal citizen and the child is with the Tribe(s) to obtain verification, child. eligible for citizenship). Response: The final rule moves this Comment: One commenter stated that but does not require that ‘‘the agency provision to FR § 23.107(b) and clarifies this provision requires proving a must obtain verification,’’ as required by that the trigger for treating the child as negative and that if a Tribe fails to the proposed rule. See FR § 23.107(b). It an ‘‘Indian child’’ is the reason to know respond to notice, continuing to treat is expected that the agency would work that the child is an Indian child. This is the child as an Indian child overrules with the Tribe(s) that the court has not based on the race of the child, but the Tribe’s power to determine its own reason to know is/are the Indian child’s rather indications that the child and her citizenship. Tribe to obtain verification regarding parent(s) may have a political affiliation Response: As noted above, if a Tribe whether the child is a citizen (or a with a Tribe. As discussed above, this repeatedly fails to respond, a court may biological parent is a citizen and the requirement ensures that ICWA’s make a determination regarding whether child is eligible for citizenship). The requirements are followed from the the child is an Indian child based on the Department encourages agencies to early stages of a case and that harmful information it has available. Treating contact Tribes informally, in addition to delays and duplication resulting from the child as an Indian child in the providing written notice, to seek such the potential late application of ICWA interim does not overrule the Tribe’s verification. While written verification are avoided. If, based on feedback from power to determine its citizenship. The from the Tribe(s) is an appropriate the relevant Tribe(s) or other determination of whether a child is an method for such verification, other information, it turns out that the child Indian child is made only for purposes methods may be appropriate, so the is not an ‘‘Indian child,’’ then the State of the particular child-custody final rule does not specify that the may proceed under its usual standards. proceeding. In addition, the Tribe verification needs to be in writing. Comment: A few commenters remains free to respond in the Comment: A commenter stated that suggested adding an end point to when affirmative or negative as to whether the appearance by the Tribe’s representative the child should no longer be treated as child is a citizen (and as to whether the at a hearing should constitute an Indian child, to add clarity. A few parent is a citizen and the child is verification. commenters noted that Tribes often fail eligible for citizenship). Response: A Tribal representative’s to respond to repeated inquiries as to Comment: A commenter notes that testimony at a hearing regarding whether children are Tribal citizens. under ICWA, the burden of proof is on whether the child is a citizen (or a One of these commenters stated that the the party asserting ICWA to provide biological parent is a citizen and the rule should require Tribes to respond evidence that the child is Indian. child is eligible for citizenship) is an

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appropriate method of verification by exclusive authority, as sovereign country. They stated that families, the Tribe. governments, to determine their rather than Tribes, should have the final Comment: A commenter suggested political membership. One commenter say on membership. that § 23.107(a) should require that noted that the State has no authority to Response: Because ICWA only applies agencies provide certain information in determine whether ICWA applies based when the child is a member or when the the request for verification to allow on items such as whether a Tribal child’s parent is a member, the Tribes to make a determination, citizen votes or participates in Tribal individual does, in fact, have the final including at least: (1) The name of the activities or has a certain blood say on membership, as Tribal child, child’s birthdate and birth place; quantum, and that only the Tribe may membership can be renounced. See, e.g., (2) the names of the parents, their decide who is a citizen. A commenter Means v. Navajo Nation, 432 F.3d 924, birthdates and birthplaces; and (3) the stated that the emphasis should be that 934 n. 68 (9th Cir. 2005) (‘‘The names of the child’s grandparents, their if a Tribe determines a child is a citizen, authorities suggest that members of birthdates and birthplaces, to the extent that determination is conclusive and Indian tribes can renounce their known or readily discoverable. binding on the State and any other membership.’’); Thompson v. County of Response: The request for verification entity or person. Franklin, 180 F.R.D. 216, 225 (N.D.N.Y. is a meaningful request only if it A few commenters stated that while 1998) (giving effect to individual’s provides sufficient information to the they support the provision, there should unequivocal renunciation of Tribal Tribe to make the determination as to be a mechanism for the State court to membership); see, e.g., Fort Peck whether the child is a citizen (or the determine the child is an Indian child Comprehensive Code of Justice Title 4, parent is a citizen and the child is if the Tribe fails to respond. One Enrollment, sec. 217A(b) (1989) (‘‘Any eligible for citizenship). Providing as commenter suggested adding at the end adult member of the Assiniboine and/or much information as possible facilitates of PR § 23.108(d) ‘‘provided that if the Sioux Tribes may apply for earlier identification of an Indian child Tribe does not respond following a good relinquishment of their respective tribal and helps prevents disruptions. FR faith effort to obtain verification, the enrollment, at any time.’’). § 23.111(d) includes categories of court must still treat the child as an Comment: A commenter stated that information that must be provided in Indian child if it otherwise has reason PR § 23.108 is too narrow because it the notice to a Tribe in involuntary to believe that the child may be an fails to account for Tribes that make foster-care placement or termination of Indian child.’’ Likewise, a commenter membership determinations based on parental rights proceedings. Such requested a reference to PR § 23.108 be biological grandparent membership. information may be helpful to provide added to PR § 23.107 so it would read Response: The final rule does not for other types of proceedings to assist ‘‘unless and until it is determined affect how Tribes determine citizenship, in verification of whether the child an pursuant to PR § 23.108 that the child is whether based on biological Indian child. not a member. . .’’ to make clear only grandparent citizenship or otherwise. Comment: A commenter stated that the Tribe makes the determination. For the purposes of ICWA applicability, § 23.107 should be revised to state that Response: Tribes, as sovereign if a child is eligible for Tribal it is never appropriate for a State court governments, have the exclusive citizenship based on a grandparent’s to determine the child is not Indian, if authority to determine their political citizenship, that is not the end of the there is any reason to believe the child membership and their eligibility inquiry. The statute still requires that is Indian, without providing notice to requirements. A Tribe is, therefore, the the child must either himself or herself the Tribe. authoritative and best source of be a citizen, or that child’s parent must Response: The Department agrees. information regarding who is a citizen be a citizen, in order for the child to be ICWA establishes that notice to the of that Tribe and who is eligible for an ‘‘Indian child.’’ Tribe is required for involuntary child- citizenship of that Tribe. Thus, the rule Comment: One commenter requested custody proceedings when the court has defers to Tribes in making such clarification that BIA will no longer reason to know that an Indian child is determinations and makes clear that a make any membership decisions in lieu involved. See 25 U.S.C. 1912(a). This court may not substitute its own of a Tribe. provision avoids a determination that a determination for that of a Tribe Response: The rule does not provide child for whom there is ‘‘reason to regarding a child’s citizenship or for BIA to make determinations as to know’’ was an Indian child is not an eligibility for citizenship in a Tribe. Tribal citizenship or eligibility for ‘‘Indian child’’ without notice to the While a Tribe is the authoritative and Tribal citizenships except as otherwise Tribe. best source regarding Tribal citizenship provided by Federal or Tribal Law. BIA information, the court must determine can help route the notice to the right 5. Tribe Makes the Determination as to whether the child is an Indian child for place. The existing regulation at Whether a Child is a Citizen of the Tribe purposes of the child-custody § 23.11(b) and the final regulation at FR Comment: A few commenters proceeding. That determination is § 23.111(e) state that, if the identity or opposed the provision at PR § 23.108 intended to be based on the information location of the parents, Indian stating that the Tribe makes the provided by the Tribe, but may need to custodians or Tribe cannot be determination as to whether the child is be based on other information if, for determined, notice must be sent to the a citizen, pointing out that courts have example, the Tribe(s) fail(s) to respond. BIA regional office. This mirrors the held that the parent has the burden to For example, the final rule clarifies that statutory requirement. See 25 U.S.C. prove the child is an Indian child and a Tribal determination of citizenship or 1912. To ensure response at the regional that if the parent fails to prove that, then eligibility for citizenship may be level, the final rule requires that notice the court is free to determine the child reflected in a preexisting document be sent to the Regional Director and is not an Indian child. issued by a Tribe, such as Tribal deletes the provision at § 23.11(a) Several commenters stated their enrollment documentation. requiring a copy of each notice be sent support of the provision that the Tribe Comment: A few commenters stated to Secretary. makes the determination as to that allowing Tribes the sole authority Comment: A few commenters citizenship. These commenters stated to determine membership is unfair to suggested strengthening this section by that the provision recognizes Tribes’ those who willfully left behind Indian changing ‘‘may’’ to ‘‘shall’’ to confirm

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that only the Tribe may define its information to the Tribal court. State allows for Tribal-State agreements membership. and Tribal courts and State and Tribal governing jurisdiction. Response: The final rule adopts the child-welfare agencies are encouraged to Comment: A commenter stated that substance of this suggestion by deleting work cooperatively to ensure that this PR § 23.110(b) would apparently ‘‘may’’ and instead providing that the process proceeds expeditiously and that preclude the State from providing safety Tribe ‘‘determines.’’ the welfare of the Indian child is investigative services it currently Comment: One commenter requested protected. provides when a child is domiciled on clarification that a child may be a Comment: A commenter stated that reservation but located off reservation. member in a Tribe without necessarily the court should be required to Response: The final rule addresses being enrolled. ‘‘immediately’’ dismiss a proceeding dismissals of State-court child-custody Response: Tribes determine their under PR § 23.110 as soon as it proceedings based on lack of citizenship; neither the statute nor the determines it lacks jurisdiction. A few jurisdiction. It does not affect State rule address how a Tribe determines commenters requested additions to authority to provide safety investigative who its citizens are (by enrollment, or ensure that the State diligently contacts services when a child is domiciled on otherwise). the Tribe and transfers the case in a reservation but located off reservation. Comment: A commenter requested timely manner. Comment: A commenter suggested adding language stating that a Tribe that Response: The final rule does not adding to PR § 23.110(c) that the State previously made a determination as to include a requirement to dismiss a case court must contact the Tribal court not Tribal membership may revisit and/or within a certain time frame because the only when the child has lived on a correct that decision. timing may depend upon coordination reservation, but also if the State court Response: The Tribe determines with the Tribal court. See FR § 23.110. has reason to believe the child may be citizenship and may provide new The final rule does add a requirement a ward of Tribal court. evidence as to Tribal citizenship to the Response: The final rule clarifies that that the State must ‘‘expeditiously’’ court. the Tribe has jurisdiction, notify the Tribe of a pending dismissal. Comment: One commenter stated notwithstanding the Indian child’s The State court may also need to reach there should be a presumed Tribe the residence or domicile off reservation, if out to the Tribal court or Tribal child- same way there is a presumed parent the child is a ward of the Tribal court. welfare agency to determine whether because it often takes a Tribe years to See FR § 23.110(b). The State court may jurisdiction over child-custody recognize a child as eligible for need to contact the Tribal court to proceedings for that Tribe is otherwise enrollment. confirm the child’s status as a ward of vested in the State by existing Federal Response: The rule does not include that court. In addition, the final rule law. See 25 U.S.C. 1911(a). a provision establishing a presumed identifies the child’s status as a ward of Comment: A few commenters Tribe. ICWA establishes that a child is a Tribal court as one of the ‘‘reasons to suggested revising PR § 23.110(b) to an ‘‘Indian child’’ if the child is know’’ that the child is an Indian child, specify that the documentation the enrolled, or if the parent is enrolled and FR § 23.107(c)(5), a status which may agency must submit includes ‘‘all the child is eligible for enrollment. trigger certain notice requirements. See agency documentation as well as FR § 23.111. E. Jurisdiction: Requirement To Dismiss reporter information’’ because a Tribal Action Comment: A few commenters court to which a case is transferred is at suggested allowing an exemption for With limited exceptions, ICWA a disadvantage without reporter dismissal in emergency cases. These provides for Tribal jurisdiction information on key witnesses and other commenters stated that this exemption ‘‘exclusive as to any State’’ over child- details. is necessary to ensure the safety of the custody proceedings involving an Response: The final rule requires the child, so the State does not dismiss Indian child who resides or is domiciled court to transmit all information in its proceedings until the Tribe has asserted within the reservation of such Tribe. 25 possession regarding the Indian child- jurisdiction. U.S.C. 1911(a). ICWA also provides for custody proceeding to the Tribal court. Response: FR § 23.110 includes the exclusive Tribal jurisdiction over an Such information would include all the introductory provision ‘‘subject to Indian child who is a ward of a Tribal information within the court’s § 23.113 (emergency proceedings)’’ to court, notwithstanding the residence or possession regarding the Indian child- ensure that the child is not subjected to domicile of the child. Id. custody proceeding; the final rule adds imminent physical damage or harm. A court’s subject-matter jurisdiction is examples for clarity. The final rule also Comment: One commenter noted that essential to the exercise of judicial changes ‘‘all available information’’ to if PR § 23.110(c) continues to require the power, is not a subject of judicial ‘‘all information’’ regarding the State court to contact the Tribal court, discretion, and cannot be waived. See, proceeding. See FR § 23.110. In order to then BIA should maintain a e.g., Arbaugh v. Y&H Corp., 546 U.S. best protect the welfare of the child, comprehensive list of Tribal courts and 500 (2006). Thus, the final rule State agencies may wish to share their contact information. identifies the determinations that a State information that is not contained in the Response: If the State court does not court must make to assess its State court’s records but that would have contact information for the Tribal jurisdiction. If the State court does not assist the Tribe in understanding and court, the Tribe’s designated ICWA have jurisdiction, either because the meeting the Indian child’s needs. agent may provide that information. The Indian child is domiciled on a Comment: A few commenters BIA publishes, on an annual basis, a list reservation, where the Tribe exercises suggested an amendment to clarify that of contacts designated by each Tribe for exclusive jurisdiction over child- the mandatory dismissal provisions do receipt of ICWA notices in the Federal custody proceedings, or because the not apply if the State and Tribe have an Register and makes the list available at Indian child is a ward of a Tribal court, agreement regarding jurisdiction www.bia.gov. the final rule instructs the State court to because, in some cases, Tribes choose to Comment: A commenter suggested notify the Tribal court of the pending refrain from asserting jurisdiction. BIA compile a list of which reservations dismissal, dismiss the State-court Response: The final rule adds a are subject to a Tribe’s exclusive proceedings, and send all relevant reference to § 1919 of the Act, which jurisdiction for child-welfare

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proceedings and make this information provided. The statute provides rights to A commenter suggested this section readily available to States, to allow them parents, Indian custodians and Tribes change ‘‘should’’ to ‘‘shall’’ to require to determine whether the Tribe (e.g., right to intervene) and a change in the court/agency to contact the Tribe or exercises exclusive jurisdiction over a circumstances resulting from a change BIA for assistance in locating a particular reservation. in placement may prompt an individual translator or interpreter. Response: Each Tribe’s ICWA or Tribe to invoke those rights, even Response: The final rule continues to designated contact will have though they did not do so before. allow for a translator or interpreter, by information on whether the Tribe ICWA also provides for minimum including the requirement to provide exercises exclusive jurisdiction. notice periods that are designed to allow language-access services, as governed by notice recipients time to evaluate the Title VI of the Civil Rights Act and other F. Notice notice and prepare to participate in the Federal laws. See also 25 CFR 23.82 The notice provisions included in proceeding. The final rule, therefore, (assistance in identifying language section 1912(a) are one of ICWA’s core reiterates the minimum time limits interpreters). procedural requirements in involuntary required by the Act. In many instances, Comment: A few commenters child-custody proceedings for protecting however, more time may be available opposed notice requirements in the the rights of children, parents, Indian under State-court procedures or because emergency context. The Washington custodians, and Tribes. Prompt notice is of the circumstances of the particular Department of Social and Human necessary to ensure that parents, Indian case. The final rule, therefore, makes Services, Children’s Administration, custodians, and Tribes have the clear that additional time may be and California Department of Social opportunity to participate in the available. Services opposed notice requirements proceeding. Without notice of the for emergency proceedings, noting that proceeding, they will not be able to 1. Notice, Generally the timelines associated with notice are exercise other rights guaranteed by Comment: Several commenters stated unreasonable in this context. In ICWA, such as the right to intervene in their support of the provision at PR California, for example, if the child has or seek transfer of the proceedings. In § 23.111(a) clarifying what information been removed, the detention hearing addition, notice may facilitate early must be included in notices and to must be held by the next judicial day actions that will minimize disruptions whom notices must be sent. Several after the petition is filed. Requiring for the children and families through, commenters noted that too often, ICWA notice, and having to wait 10 for example, enabling placement of appropriate parties are not notified of a days after the receipt of the notice, Indian children in preferred placement child-custody proceeding in a timely would make compliance with the homes as early as possible. It will also manner. Several commenters noted the detention timeframe impossible. allow for prompt provision of Tribal importance of rigorous notice Response: The commenters point out resources and early transfer to Tribal requirements in involuntary a potential issue with timing of courts. proceedings as necessary to: Facilitate emergency removals and the section In order for the recipients of a notice parents’, Indian custodians’, and Tribes’ 1912(a) requirements for notice. The to be able to exercise their rights in a participation and make available Tribal final rule addresses this by requiring timely manner, the notice needs to resources; facilitate placement of Indian formal notice and applicable timelines provide sufficient information about the children in preferred placement homes to only those placements covered by child, the proceeding, and the as early as possible and minimize the section 1912(a) of the Act and do not recipient’s rights in the proceeding. The possibility that children will face a apply to emergency proceedings. The final rule, therefore, specifies the disruption in the future; and allow rule indicates, however, that the information to be contained in the Tribes the opportunity to fully petition for emergency removal or notice. Some of the information that is participate in proceedings affecting their emergency placement should include required to be provided, such as citizens, advocate for their citizens, and statements of any efforts made to identifying and Tribal enrollment transfer to Tribal courts without delay. contact the Indian child’s parents or information, is necessary so that that One commenter noted that Tribes have Indian custodians and Tribe. See FR Tribes can determine whether the child rights to transfer and intervene that they § 23.113(c)(3), (c)(8). As discussed is a member of the Tribe or eligible for can exercise only if they have notice of below, section 1922 of the Act applies membership. Other information, such as a proceeding. One commenter stated in limited circumstances, for short a copy of the petition initiating the that the costs of not providing notice are periods of time, to ensure that ICWA’s child-custody proceeding and a great, in terms of costs to rectify removal procedural and substantive provisions description of the potential legal and costs to the child in terms of trauma do not prohibit a State from removing a consequences of the proceeding, is and loss of language and culture. child under State law on an emergency necessary to provide the recipient with Response: The Department agrees basis ‘‘to prevent imminent physical sufficient information about the with these comments, and has crafted damage or harm to the child.’’ In such proceeding to understand the the final rule to ensure complete and situations, notice should be provided as background and issues that may be accurate notices of involuntary soon as possible. addressed in the proceeding and the proceedings are provided in a timely Comment: A commenter noted that an consequences that may flow from the manner. issue that constantly causes delay is the proceeding. Finally, other information, Comment: A few commenters also Tribe failing to timely respond to notice such as descriptions of the intervention supported the requirement in PR because often there are processes that rights and timelines, is necessary to § 23.111(g) for a translated version of the have to take place within the Tribe that inform the recipient of the rights that notice or having the notice read and prevent timely response, causing are available to the recipient. explained in a language understandable emotional and financial difficulty for all The final rule deletes the provision to the parents. These commenters stated parties. PR § 23.135(a)(3) requiring notice of a that many Alaska Natives have limited Response: Any processes that are change in placement. The Department, English proficiency and that parents are internal to a Tribe and may delay a however, recommends that information often not informed in plain language of Tribe’s response to notice are beyond about such changes regularly be the process or their rights under ICWA. the scope of this rule. In addition, the

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final rule may ameliorate that problem Response: The rule specifically notice has previously been given for the by identifying information to be addresses how to contact a Tribe at FR child’s foster-care proceeding. If a Tribe provided in the notice that may allow § 23.105, and clarifies that BIA intervenes or otherwise participates in a Tribes to more readily determine the publishes a list of Tribally designated proceeding, the Tribe should receive child’s status. ICWA agents who may receive notice. notice of hearings in the same manner Comment: Several commenters had Comment: A few commenters as other parties. additional suggestions for improving the requested that BIA forward all notices it Comment: A commenter requested notice requirements. For example, one receives to the Tribe, to provide checks clarification that any time an agency commenter suggested a consistent and balances to ensure the Tribe opens an investigation or the court process and format to inform Tribes of receives notice and because some States orders the family to engage in services ICWA cases. Several commenters provide notice to BIA without to keep the child in home as part of a suggested adding a deadline to provide contacting the Tribe. diversion, differential, alternative notice, such as within 15 days of when Response: The party seeking response, or other program, that a child is removed from the home. placement is responsible for providing agencies and courts should follow the These commenters also suggested the Tribe with notice under the statute. verification and notice provisions. adding a requirement for the State to See 25 U.S.C. 1912(a). BIA assists when Response: The statute applies to prove the Tribe received notice, noting there is difficulty identifying or locating Indian child-custody proceedings. The that in Alaska the mail is not always a Tribe; however, it is the responsibility final rule does not address in-home reliable. of the party seeking placement to send services that do not meet the Act’s Response: The Department is notice directly to the appropriate definition for ‘‘child-custody considering whether to provide a Tribe(s). proceeding.’’ sample notice as part of updated Comment: A few commenters 2. Certified Mail v. Registered Mail guidelines and also encourages States to suggested revising PR § 23.111(d) to implement a consistent process and provide that the court/agency must Comment: A few commenters format to inform Tribes of ICWA cases. check the Federal Register contact supported requiring notice in PR With regard to a deadline to provide information for the child’s Tribe and § 23.111 by registered mail with return notice, the rule does not establish such send the notice to BIA only if unable to receipt requested. One commenter a deadline because the rule provision identify the Tribe. stated that this requirement is important incorporates those deadlines specified Response: The final rule’s directions because it establishes proof of notice. A by statute. See FR § 23.112; 25 U.S.C. for how to contact a Tribe includes few suggested this requirement replace 1912(a). checking the Federal Register contact the requirement for certified mail in Comment: A few commenters information. See FR § 23.105. § 23.11(a). suggested the rule should require States Comment: A commenter stated that Several commenters opposed the to contact Tribes by phone and email, in the number of notices required is requirement for registered mail with addition to mail, and clarify when excessive. Another commenter stated return receipt. These commenters noted contact less formal than registered mail that it is unclear whether PR § 23.111(a) issues with registered mail with return is acceptable. requires notice only once at the receipt requested that undermine ICWA Response: The statute and the final initiation of the proceeding, or whether compliance: Specifically, that registered rule require notice by registered or it is required for each hearing within a mail with return receipt requested is certified mail, return receipt requested. proceeding. A few commenters approximately three times more costly, (See section IV.F.2 of this preamble for suggested requiring registered mail only and that registered mail is less reliable response to comments on registered and for the first notice because notice for as timely notification. One commenter certified mail.) The Department each subsequent hearing or action and noted that, in 1994, BIA considered encourages States to act proactively in all the data elements is onerous and requiring registered mail with return contacting Tribes by phone, email, and unnecessary if the Tribe is already receipt requested but ultimately rejected through other means, in addition to noticed and involved in the it because it determined it undermined sending registered or certified mail. proceedings. Similarly, another the purpose of ICWA notice. A few Comment: A commenter suggested commenter suggested that there be an commenters also stated that registered that the rule should require notice to the exception to notice requirements if the mail requires the individual to pick up putative father, if a putative father other Tribe has actual notice of the hearing, so the mail from the postal service whereas than the alleged father becomes known, the State does not have to unnecessarily certified mail is in-person delivery with to protect the putative father’s rights. spend additional resources. a sign-off; and that registered mail can Response: The statute and regulations Response: Notice of an involuntary result in delays because only the person require notice to the parents; a ‘‘parent’’ proceeding for foster-care placement or whose name exactly matches the includes unwed fathers that have termination of parental rights is addressee can pick up the mail, and if established or acknowledged paternity. required by section 1912 of the Act. See the person is not present the mail is sent If, at any point, it is discovered that FR § 23.111(a). Each proceeding may back to the sender. someone is a ‘‘parent,’’ as that term is involve more than one court hearing, Response: The final rule requires defined in the regulations, that parent is but only one notice meeting the either registered mail with return entitled to notice. registered (or certified) mail receipt requested or certified mail with Comment: A commenter suggested requirements of section 1912(a) is return receipt requested. Both types of incorporating Colorado’s requirement required for each proceeding (regardless mail provide evidence of delivery with for notice to be sent to the designated of the number of court hearings within the return receipt. See FR § 23.111. As Tribal agent (listed in the Federal the proceeding). See Section IV.C.1 the commenters detail, there is no clear Register) or the highest Tribal official, (‘‘Child-custody proceeding’’ Definition) benefit of requiring registered mail over or if neither can be determined, then to of this preamble. Consistent with the certified mail, because there is no the highest Tribal court judge with a statute, the final rule requires that practical difference between the two copy to the Tribe’s social services notice be given for a termination-of- that impacts any of the interests that department. parental-rights proceeding, even if ICWA protects. Registered mail offers

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the added feature of a chain of custody names or aliases), birthplaces, and Response: The statute provides while in transit, but this chain of birthdates and as much information as indigent parents/Indian custodians the custody is not necessary to effectuate is known regarding the child’s other right to counsel. See 25 U.S.C. 1912(b). notice under ICWA and adds delay. In direct lineal ancestors. See FR The final rule restates this right, and terms of cost and timeliness, certified § 23.111(d)(2). This information was deletes the provision ‘‘where authorized mail provides benefits over registered required under the current § 23.11(d)(3), by State law’’ because the statute mail in that certified mail is less which the new rule is replacing. establishes that the right exists even if expensive and enables notice more Comment: A few commenters stated State law does not provide for such quickly. that the rule should provide court-appointed counsel. See FR Comment: Several commenters consequences if the notice fails to § 23.111(d). opposed the provision stating that include the necessary information, such Comment: One commenter stated that personal service may not substitute for as invalidating State actions or where a State appoints counsel because registered mail return receipt requested. providing a basis for dismissal. the parents or Indian custodians cannot These commenters stated that personal Response: The rule recognizes the afford one, at PR § 23.111(c)(4)(iv), that service is the best guarantee of receipt. importance of providing meaningful the counsel must represent the party for Several also stated that actual notice notice to meet the goals of the statute. the entirety of the case to ensure should be a substitute for registered The statute provides that certain parties parents’ rights are addressed mail. may seek to invalidate actions based on consistently throughout the case rather Response: If State law requires actual ICWA violations, including notice than appointing different notice or personal service, that may be violations. See 25 U.S.C. 1914; FR representatives at each stage. a higher standard for protection of the § 23.137. In addition, State courts may Response: While it is a recommended rights of the parent or Indian custodian also make additional determinations practice to appoint the same counsel for of an Indian child than is provided for imposing consequences for failure to the entirety of the case (throughout all in ICWA. In that case, meeting that provide meaningful notice. proceedings), the final rule does not higher standard would be required. See require a single counsel for the duration Comment: One commenter stated that 25 U.S.C. 1921. of a case. Comment: One commenter suggested it is problematic for § 23.111 to require 4. Notice of Change in Status requiring that the postal receipt be filed a copy of the petition be provided with with the court, to ensure that service is the notice because it contains Comment: A State agency commented completed before any hearings are held. confidential information about the that requiring notice of a change in Response: Maintaining children and parents and the notice may placement, as under PR § 23.135, will documentation of notice is important; as be sent to Tribes that ultimately have no create additional workload because the courts have emphasized, the ‘‘filing of affiliation. notice has to include information about proof of service in the trial court’s file Response: The final rule continues to the right to petition for return of the would be the most efficient way of require a copy of the petition, as the child, which contemplates that the meeting [the] burden of proof’’ in petition contains important information notice must be in writing. This proving notice. See In re E.S., 964 P.2d about the proceeding and the child and commenter stated that the section 404, 411 (Wash. Ct. App. 1998). The parties involved. This requirement was should be amended to allow for notice rule requires the court to ensure this required under the former rule at 25 by whatever means is customary to the documentation is in the record. See FR CFR 23.11(d)(4), which this rule is Tribe that is actively participating and § 23.111(a)(2). replacing. While it is true that a petition to recognize that confidential may contain confidential information, information cannot be shared. 3. Contents of Notice providing a copy of the petition with Response: The final rule deletes the Comment: Several commenters stated notice to Tribes is a government-to- provision PR § 23.135(a)(3) requiring that the notice must contain the names government exchange of information notice of a change in placement. The and birthdates of the child’s parents for necessary for the government agencies’ Department, however, recommends that the notice to be useful for the Tribe to performance of duties. Tribes are often information about such changes determine whether the child is a treated like Federal agencies for the regularly be provided. The statute member or if the parent is a member and purposes of exchange of confidential provides rights to parents, Indian the child is eligible for membership. A information in performance of custodians and Tribes (e.g., right to commenter stated that notices seldom governmental duties. See, e.g., Indian intervene) and a change in include the father’s name but it is Child Protection and Family Violence circumstances resulting from a change necessary to determine if the child is a Prevention Act, 25 U.S.C. 3205 (2012); in placement may prompt an individual member. A few of these stated that the Family Rights and Education Protection or Tribe to invoke those rights, even rule should also require including the Act, 20 U.S.C. 1232(g) (2012). The though they did not do so before. names and birthdates and birthplaces of substance of the petition is necessary to Comment: A commenter opposed the the child’s grandparents to the extent provide sufficient information to allow requirement in PR § 23.135 to provide known or readily discoverable. Another the parents, Indian custodian and Tribes notice to biological parents whenever commenter suggested the rule require to effectively participate in the hearing. the child’s adoption is vacated or set including maiden names or prior names Comment: A few commenters aside or the adoptive parents voluntarily or aliases. Several of these commenters supported PR § 23.111(c)’s requirement consent to termination of parental noted that the more information that is for the notice to contain a statement that rights. According to the commenter, this provided to Tribes, the more easily the counsel will be appointed to represent provision violates confidentiality responding Tribes can verify an indigent parent or Indian custodian, because, at that point, the biological membership or eligibility for but opposed the qualification ‘‘where parent has no right to notification about membership. authorized by State law.’’ These the child. Response: The final rule includes the commenters stated that the statute does Response: The final rule continues to requirement for the parents’ names not include the qualification ‘‘where use ‘‘biological parent’’ with regard to (including any known maiden or former authorized by State law.’’ notice that a final decree of adoption of

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an Indian child has been vacated or set right to notice of failed adoptions, the point out that the child and family will aside or the adoptive parents voluntarily rule addresses this circumstance to benefit from the involvement of all the consent to the termination of their provide safeguards on any such waiver Tribes and will provide more Tribal parental rights to the child because the and ensure the right to revoke the resources to increase the likelihood of statute provides the biological parent or waiver. The final rule adds several of preferred placement. prior Indian custodian certain rights if the suggested safeguards to ensure Response: The statute establishes one the adoption decree is vacated or set ICWA’s intent is met. The final rule Tribe as the ‘‘Indian child’s Tribe.’’ See aside. See 25 U.S.C. 1916(a); FR does not add a requirement for the court 25 U.S.C. 1903(5). As a best practice, § 23.139. to maintain information on the waiver other Tribes that are interested in the Comment: A Tribal commenter in its database, but does provide that the proceeding may coordinate with the requested adding a requirement for the waiver may be revoked at any time by Tribe designated as the ‘‘Indian child’s State to notify the Tribe if the child is filing a notice of revocation. See FR Tribe’’ or with State agencies to ensure placed in an approved adoptive § 23.139. involvement and provide Tribal placement or with a placement that Comment: A few commenters stated resources to increase the likelihood of a intends to adopt the child. that the provision in PR § 23.135(c) preferred placement. Response: The statute requires notice allowing notice to be waived should not Comment: A few commented on who of involuntary proceedings for foster- apply to foster-care placement changes makes the determination as to the care placement or termination of where parental rights have not been designation of the Tribe. Several parental rights. See 25 U.S.C. 1912(a). terminated. commenters opposed having the State There is no statutory authority to Response: FR § 23.139 limits waiver select the Tribe with which the child require notice if a foster family forms an of notice to two situations: where has more significant contacts. Others intention to adopt that Indian child or adoption of an Indian child is vacated recommended clarifying that the court, is generally designated an ‘‘approved or set aside and where the adoptive rather than the agency, makes the adoptive placement’’ in addition to parents voluntarily terminate their determination as to which Tribe should being a foster placement. It is a best parental rights. In those cases, the be designated as the child’s Tribe. practice for the State agency to inform biological parent or prior Indian Response: The statute establishes that the Tribe if a child’s permanency plan custodian may waive notice of these the Indian child’s Tribe is the Tribe or a concurrent plan changes, such as actions. Neither of those two situations with which the Indian child has more from foster care to adoption. involves foster-care placements. significant contacts. See 25 U.S.C. Comment: A commenter requested Comment: A commenter suggested PR 1903(5). The final rule clarifies that the deletion of the provision at PR § 23.135(c) should clarify that only court must first provide the opportunity § 23.135(c) allowing a parent or Indian ‘‘completed proceedings’’ will not be for the Tribes to make that custodian to waive the right to notice of affected by a revocation of a waiver of determination, but that if the Tribes are a change in an adopted child’s status right to notice. unable to agree, the State court must because parents may sign without a full Response: The final rule specifies that designate, for the purposes of ICWA, understanding of the legal right they are a waiver of right to notice will not affect which is the child’s Tribe for this waiving, especially if the waiver is completed proceedings. See FR limited purpose. See FR § 23.109(c). In presented with other documents. § 23.139(c). This clarifies that notice of situations where the Tribes are unable Another commenter supported the proceedings that are in progress when to agree, it is a best practice to notify the provision but suggested adding the waiver is executed and filed may be Tribes and conduct a hearing regarding safeguards because a waiver by affected. designation of the Indian child’s Tribe. vulnerable parents with issues that have Comment: A few commenters stated given rise to an involuntary proceeding 5. Notice to More Than One Tribe that the preference of the parents should is particularly suspect, and parents or Comment: A commenter stated that be determinative, rather than the court’s Indian custodians in other cases may PR § 23.109(b) should be mandatory, determination. have been pressured to waive notice. such that if there is only one Tribe in Response: The Act provides that the This commenter suggested that any which the child is a member or eligible child’s Tribe is the Tribe with which the waiver should be explicitly confirmed for membership, that Tribe must be Indian child has the more significant before the judge with the consequences designated as the child’s Tribe. contacts. See 25 U.S.C. 1903(5). The rule explained as part of the section 1913 Response: The final rule includes this provides that the State court may process, as well as the parent’s right to suggested change. See FR § 23.109(a). consider the parent’s preferences for withdraw the waiver and how that can Comment: A commenter stated that which Tribe should be designated the be done. Commenters also stated the PR § 23.109(d), allowing one Tribe to Indian child’s Tribe as a factor in court should be required to maintain authorize another to represent it, should determining with which Tribe the child this information in a database and require that the authorization be is more significant contacts. See FR inform waiving parents that they can documented by filing the authorization § 23.109(c). obtain that information at any time, in court to establish that the Tribe was Comment: Several commented on the notwithstanding the waiver, merely by properly notified. factors for determining with which contacting the court through a clearly Response: Nothing in the statute Tribe the child has more significant defined and simple process that does either allows or prohibits one Tribe contacts and suggested the list at PR not require legal counsel. from authorizing another to represent it. § 23.109(c)(1) should be combined with Response: The statute does not The final rule therefore deletes the the list at PR § 23.109(c)(2)(ii). Another specify that parents or Indian provision. commenter suggested adding examples custodians may waive their right to Comment: Several commenters stated of ‘‘more significant contacts’’ for notice if an adoption fails, but there is that all Tribes should be encouraged to determining which Tribe is the child’s no prohibition on parents or Indian participate in Indian custody Tribe, to include ‘‘relative or extended custodians waiving the right to future proceedings where the child is a family contacts, kinship contacts, trips notice. Given that parents and Indian member of, or eligible for membership home for cultural events, funerals, or custodians may choose to waive their in, more than one Tribe. These Tribes similar events.’’

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Response: The final rule combines the Response: The statute provides that interest’’ in the care, custody, and two proposed lists to establish one list no placement shall occur if the management of their child, and this of factors indicative of significant requirements for notice, including the interest ‘‘does not evaporate simply contacts because the court is making the timing of the notice, are not met. See 25 because they have not been model same determination on ‘‘more U.S.C. 1912(a). These statutory parents or have lost temporary custody significant contacts’’ in both provisions provisions are implemented at FR of their child to the State.’’ Santosky v. of the proposed rule. The proposed lists § 23.112(a). Kramer, 455 U.S. 745, 753 (1982). And varied slightly from each other, so the until a parent has been proven to be 7. Notice in Interstate Placements final list reconciles them in two ways: unfit, the child shares with the parent first, by including the preferences of Comment: A few commenters stated ‘‘a vital interest in preventing erroneous parents, rather than both parents and their support of PR § 23.111(i), which termination of their natural extended family members who may requires both the originating and relationship.’’ Id. at 760. For become placements, because that would receiving States to provide notice if a proceedings involving an Indian child, require speculation about prospective child is transferred interstate. Some of the active-efforts requirement helps placements that is not directly relevant these commenters referred to the facts protect these interests. to the question of which Tribe the child underlying the Adoptive Couple v. Baby The Department finds compelling the has more significant contacts; and Girl case and asserted that this provision views of child-welfare specialists who second, by deleting ‘‘availability of would help prevent a similar situation. opine that ‘‘the cornerstone of an placements’’ as a factor, for the reason A few commenters opposed this effective child-welfare system is the discussed below. See FR § 23.109(c). provision. Most of these commenters presumption that children are best Comment: A few commented on suggested the sending State should be served by supporting and encouraging inclusion of the availability of responsible for providing notice because their relationship with fit birth parents placements in the list of factors. One the receiving State would not be aware who are interested in raising them and stated that inclusion of this factor is of the placement and have no court case are able to do so safely.’’ See, e.g., wise as long as courts do not question or opportunity to provide notice. Comments of Casey Family Programs, et the suitability of placements. Another Another stated that notice should be al., at 1 (comments submitted on behalf stated that it should not be included as required only in the State where the of a group of national organizations, a factor because it has nothing to do court proceeding is pending. One stated associations, and professors); see also with the contact the child has had with that this requirement will result in Brief of Casey Family Programs, et al., the Tribe. duplicative notices and cause potential Adoptive Couple v. Baby Girl, at 7. These specialists note that ‘‘[a]mong the Response: The final rule deletes this confusion. A few commenters stated most important components of a sound factor because it is not relevant to the that this requirement would strain child-welfare system is the requirement question of with which Tribe the child already overburdened resources. Response: The final rule deletes this for agencies and others responsible for has more significant contacts. provision, as this subject is not directly children’s well-being to be vigilant in Comment: One commenter opposed addressed in the statute. However, BIA striving to keep children in their the requirement to notify ‘‘all Tribes’’ encourages such notification as a families; to remove them only when that a determination of the child’s Tribe recommended practice. necessary to protect them from serious has been made because it would require harm; and to work diligently to assist another round of notices to Tribes that 8. Notice in Voluntary Proceedings families with overcoming obstacles to already determined the child is not Comments regarding notice in children’s safe return promptly.’’ theirs and another Tribe would be voluntary proceedings are addressed in Comments of Casey Family Programs, et involved. Section IV.L.2 of this preamble, below. al., at 3; see also National Council of Response: The final rule does not Juvenile and Family Court Judges, G. Active Efforts include the proposed requirement to Adoption and Permanency Guidelines: notify all Tribes of a determination of ICWA requires that any party seeking Improving Court Practice in Child Abuse the child’s Tribe. to effect a foster-care placement of, or and Neglect Cases 5 (2000). Congress 6. Notice for Each Proceeding termination of parental rights to, an has recognized this principle in other Indian child must satisfy the court that contexts as well. See 42 U.S.C. 671 Comment: A commenter stated that active efforts have been made to provide (requiring State plan for foster care and the notice should list the date, time, and remedial services and rehabilitative adoption assistance to provide that location of the hearing, the issue to be programs to prevent the breakup of the reasonable efforts will be made to heard, and the consequences of any Indian family and that these efforts have prevent or eliminate the need for requested ruling. proved unsuccessful. 25 U.S.C. 1912(d). removal of the child from his home and Response: The final rule lists required This is one of the key provisions in to make it possible for the child to information in the notice, including the ICWA designed to address Congress’ return to his home.) date, time, and location of the hearing finding that the removal of many Indian The active-efforts requirement in if the hearing has been scheduled at the children was unwarranted. 25 U.S.C. ICWA reflects Congress’ recognition of time notice is sent. The final rule 1901(4). The active-efforts requirement the particular history of the treatment of requires the notice to include contact helps protect against these unwarranted Indian children and families, and the information for the court to ensure the removals by ensuring that parents who need to establish a Federal standard for recipient may contact the court for are or may readily become fit parents efforts to maintain Indian families. After information on any hearings and are provided with services necessary to extensive hearings in the 1970s, requires the notice to state the potential retain or regain custody of their child. Congress recognized that the social legal consequences of the proceeding. The active-efforts requirement conditions, including poverty, facing See § 23.111(d)(6)(vii)–(viii). embodies the best practice for all child- many Tribes and Indian people—some Comment: A commenter requested welfare proceedings, not just those brought about or exacerbated by Federal clarification that PR § 23.111(h) does not involving an Indian child. Natural policies—were often cited as a reason allow parties to waive timely notice. parents possess a ‘‘fundamental liberty for the removal of children by State and

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private agencies. H.R. Rep. No. 95–1386, 1. Applicability of Active Efforts severely abused a child, the court at 12. Congress found that ‘‘agencies of Comment: A few commenters pointed should consider whether active efforts government often fail to recognize out that the Act requires ‘‘active efforts’’ could permit reunification of the Indian immediate, practical means to reduce only to provide remedial services and child with a non-abusive parent. the incidence of neglect or separation.’’ rehabilitative programs (see 25 U.S.C. a. Active Efforts To Verify Child’s Tribe Id. ICWA’s active-efforts requirement is 1912), while the proposed rule would Comment: Two commenters one critical tool to ensure that State require active efforts to prevent removal supported the proposed requirement at actors identify these ‘‘means to reduce (PR § 23.106), to work with Tribes to PR § 23.107(b)(2) for active efforts to the incidence of neglect or separation,’’ verify Tribal membership (PR determine a child’s Tribal membership, and provide necessary services to § 23.107(b)(2)), to assist parents in as one stated that State workers parents of Indian children. obtaining the return of their children frequently rely on whether the child Congress also found that ‘‘our following emergency removal (PR ‘‘does or does not look Indian.’’ Several national attitudes as reflected in long- § 23.113(f)(9)), to avoid removal (PR commenters suggested using a term established Federal policy and from § 23.120(a)), and to find placements (PR other than ‘‘active efforts’’ because arbitrary acts of Government’’ had § 23.131(c)(4)). Congress’s use of the term applied only helped produce ‘‘cultural disorientation, Response: To avoid confusion, the to providing remedial services and a [ ] sense of powerlessness, [ ]loss of final rule uses the term ‘‘active efforts’’ rehabilitative programs. One commenter self-esteem’’ that affected the ability of only in conjunction with the suggested instead using ‘‘due diligence’’ some Indian parents to effectively care requirements in 25 U.S.C. 1912. The for their children. Id. The active-efforts or ‘‘continuing efforts.’’ final rule deletes the provisions at PR Response: As mentioned above, the requirement is designed to address this § 23.106 to better reflect 25 U.S.C. final rule uses the term ‘‘diligent’’ rather problem where possible, by requiring 1912(d)’s focus on State-court actions. than ‘‘active efforts’’ for verification of appropriate services be provided to In FR § 23.107, the final rule changes Tribal citizenship. See FR § 23.107(b)(1). parents to help them attain the the terminology with regard to working necessary parenting skills or fitness. with Tribes to verify citizenship, to now b. Active Efforts To Avoid Breakup in Congress also found that States cited require ‘‘diligence’’ in working with Emergency Proceedings alcohol abuse as a frequent justification Tribes to verify a child’s Tribal Comment: One commenter stated that for removing Indian children from their citizenship. The Department agrees with the requirement for active efforts to parents, but failed to accurately assess the commenter that this is not clearly begin immediately, even in an whether the parent’s alcohol use caused within section 1912(d). The term ‘‘active emergency, is supported by Oklahoma actual physical or emotional harm. Id. at efforts’’ has also been removed from case law. 10. Congress found that different what was PR 23.131(c)(4) (regarding Response: The Act does not explicitly standards for alcohol use were applied placement preferences) to avoid apply the active-efforts requirement to in Indian versus non-Indian homes. Id. confusion; FR § 23.132(c)(5) now emergency proceedings. For this reason, The active-efforts requirement helps requires that a ‘‘diligent search’’ be the final rule does not require active ensure that alcohol, drug, or other conducted to find suitable placements efforts prior to an emergency removal or rehabilitative services are provided to meeting the preference criteria before a emergency placement. an Indian child’s parent where court may find good cause to deviate However, the statute requires a appropriate, to avoid unnecessary from the statutory preferences. showing of active efforts prior to a removals or termination of parental Comment: A commenter suggested foster-care placement. See 25 U.S.C. rights. addressing whether there is an 1912(d). In many cases, this means that exception to requiring active efforts Congress was also clear that it did not active efforts must commence at the when there is ‘‘shocking’’ or ‘‘heinous’’ feel existing State laws were adequately earliest stages of a proceeding. physical or sexual abuse or when active protective. The House Report efforts were previously provided to the c. Active Efforts To Avoid the Need To accompanying ICWA stated that ‘‘[t]he family and the same conditions exist. Remove the Child committee is advised that most State Response: The ‘‘active efforts’’ Comment: A few commenters laws require public or private agencies requirement is a vital part of ICWA’s supported the provisions in PR § 23.120 involved in child placements to resort to statutory scheme, and the statute does clarifying the requirement for active remedial measures prior to initiating not contain any exceptions. The final efforts to avoid the need to remove the placement or termination proceedings, rule’s definition of ‘‘active efforts,’’ Indian child. A few commenters but that these services are rarely however, specifies that what constitutes opposed requiring State authorities to provided. This subsection imposes a sufficient active efforts may be based on demonstrate that active efforts were Federal requirement in that regard with the facts and circumstances of a provided as a precondition for respect to Indian children and families.’’ particular case. This may include, for commencing a proceeding because it H.R. Rep. No. 95–1386, at 22. example, consideration of whether could subject Indian children to The Department recognizes that both circumstances exist that other Federal continued harm. A commenter stated laws and child-welfare practices in laws have recognized as excusing the that there may be situations where a many States may have changed since mandatory requirement for reasonable child is removed for emergency safety the passage of ICWA. However, ICWA’s efforts to preserve and reunify families. reasons (e.g., placed in police protective active-efforts requirement continues to See e.g., 42 U.S.C. 671(a)(15)(D) custody or hospital hold) and the provide a critical protection against the (reasonable efforts not required where a agency may not have the opportunity to removal of an Indian child from a fit court of competent jurisdiction has make any efforts to prevent removal. and loving parent. determined that the parent has Response: Nothing in the final rule The final rule removes PR 23.106 to subjected the child to aggravated prevents the removal of a child to better reflect 25 U.S.C. 1912(d)’s focus circumstances, or committed murder or prevent imminent physical damage or on State court actions and predicate other specified felonies). Of course, harm. These removals are addressed by findings. even in the case where one parent has the emergency proceeding provisions of

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the statute and final rule, as well as individual members of the family are enrolled in the Tribe during the course State law. The statute requires, however, themselves Indian. of the proceedings, thereby aiding in that active efforts must be demonstrated Comment: A commenter stated that ICWA’s efficient administration. prior to a foster-care placement or the requirement in PR § 23.120(b) to use f. Active Efforts To Identify Preferred termination of parental rights. See 25 the available resources of the extended Placements U.S.C. 1912(d). The ultimate goal is to family, the child’s Indian Tribe, Indian prevent the long-term breakup of the social service agencies and individual Comment: A few commenters Indian child’s family. Indian caregivers should not be suggested requiring active efforts to Comment: A few commenters stated mandatory. This commenter stated that identify families that meet the that the active-efforts requirement is practically, it may not be possible to use placement preferences. One noted that inapplicable if there is no existing the available resources listed. California law requires this. Indian family to break up, citing Response: The final rule removes this Response: The rule does not require Adoptive Couple v. Baby Girl. Another provision from § 23.120(b) because the active efforts to identify preferred commenter suggested addressing the concept is already included in the placements because the statute uses the holding in Adoptive Couple v. Baby Girl definition of ‘‘active efforts,’’ which term ‘‘active efforts’’ only with regard to by adding ‘‘except in the case of a provides that these resources should be providing remedial services and private adoption where the father used ‘‘to the maximum extent possible’’ rehabilitative programs to prevent the abandoned the child (having knowledge (as the proposed rule did at PR breakup of the Indian family. See 25 of the pregnancy) and never had § 23.120(b)). See FR § 23.2. U.S.C. 1912(d). It is, however, a previous legal or physical custody.’’ d. Active Efforts To Establish Paternity recommended practice and the Response: As stated earlier in this Department encourages other States to Comment: Several commenters preamble, there is not an ‘‘existing follow California’s leadership in this suggested adding efforts to establish Indian family’’ exception to ICWA. regard. As discussed further below at paternity as an example of active efforts. Under the facts of Adoptive Couple v. Section IV.M.5, the final rule permits a These commenters asserted that when Baby Girl, the Court held that the finding of ‘‘good cause’’ to depart from the father is a Tribal citizen, such requirements in 25 U.S.C. 1912(d) did the placement preferences based on the acknowledgment or establishment is not apply to a parent that abandoned the unavailability of a suitable placement critical to determining whether the Act child prior to birth and never had legal only where the court finds that a applies and is necessary to prevent the or physical custody of the child. See ‘‘diligent search was conducted to find breakup of the Indian family. suitable placements meeting the Adoptive Couple, 133 S. Ct. at 2562–63. Response: The rule does not require Comment: A few commenters stated preference criteria, but none has been active efforts to establish paternity located.’’ FR § 23.132(c)(5). that PR § 23.120(a) implies that active because the statute uses the term ‘‘active efforts are required only to the point a efforts’’ only with regard to providing 2. Timing of Active Efforts proceeding commences, and requested remedial services and rehabilitative clarification that the requirement a. Active Efforts Begin Immediately and programs to prevent the breakup of the During Investigation continues during the entirety of the Indian family. See 25 U.S.C. 1912(d). proceeding. Comment: Several commenters Response: The final rule revises this e. Active Efforts To Apply for Tribal expressed their support of the proposed provision to clarify that the court will Membership provision at PR § 23.106(a) stating that review whether active efforts have been Comment: Two commenters suggested the requirement for active efforts begins made, and that those efforts were including efforts to apply for Tribal the moment the possibility arises that a unsuccessful, whenever a foster-care membership for the child as an example child may need to be removed, and as placement or termination of parental of active efforts because the child may soon as an investigation is opened. A rights occurs. The court should not rely obtain Tribal benefits and enrollment commenter stated that this requirement on past findings regarding the may be more difficult if family will help prevent removals and sufficiency of active efforts, but rather reunification ultimately fails. promptly reunify children if placements should routinely ask as part of a foster- Response: The rule does not include are needed. Another commenter stated care or termination-of-parental-rights a requirement to conduct active efforts that early, concentrated efforts on the proceeding whether circumstances have to apply for Tribal citizenship for the part of professionals to achieve family changed and whether additional active child. The Act requires active efforts to preservation and permanency are part of efforts have been or should be provided. provide remedial services and what has led to declining foster care Comment: A commenter suggested rehabilitative programs to prevent the populations. A commenter suggested clarifying in PR § 23.120(a) that the breakup of the Indian family. This does further defining when active efforts are active-efforts requirements apply to not clearly encompass active efforts to required, because some counties defer parents of an Indian child, not simply obtain Tribal citizenship for the child. the requirement until after detention to Indian parents. In any particular case, however, it may and jurisdictional hearings, rather than Response: ICWA applies when an be appropriate to seek Tribal citizenship when removal first occurs. Another Indian child is the subject of a child- for the child, as this may make more commenter suggested clarifying that custody proceeding, and the active- services and programs available to the active efforts must be initiated at the efforts requirement of 25 U.S.C. 1912(d) child. Securing Tribal citizenship may ‘‘crucial moment of considered intent to applies to the foster-care placement or also have long-term benefits for an remove the child from the family.’’ termination of parental rights to an Indian child, including access to Another suggested that active efforts are Indian child. The child’s family is an programs, services, benefits, cultural required at the moment of the agency’s ‘‘Indian family’’ because the child meets connections, and political rights in the first contact with the family. the definition of an ‘‘Indian child.’’ As Tribe. It may be appropriate, for A few commenters stated that BIA such, active efforts are required to example, to seek Tribal citizenship exceeds its authority in requiring an prevent the breakup of the Indian where it is apparent that the child or its agency to conduct active efforts while child’s family, regardless of whether biological parent would become investigating Indian status, because it is

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not yet clear whether the Act applies. b. Time Limits for Active Efforts efforts were made prior to ordering Another commenter suggested Comment: Several commenters foster-care placement or termination of narrowing the trigger point for active recommended stating that there are no parental rights, but does not require efforts to be when at least two of the time limits on active efforts. A few such a finding at each hearing. See FR four types of placements described in commenters requested adding a timeline § 23.120. It is recommended practice for the Act are planned. One of these for active efforts; one of these suggested a court to inquire about active efforts at commenters stated that the requirement the timeline should establish that active every court hearing and actively to engage in active efforts immediately efforts terminate at termination of monitor the agency’s progress towards will unduly increase the burden on parental rights and adoption. complying with the active efforts State agencies by requiring active efforts Response: The final rule does not requirement. This will help avoid in the vast majority of referrals, and that provide any time limits on active efforts. unnecessary delays in achieving this requirement is inconsistent with A State court must make a finding that reunification with the parent, or other ICWA and case law. active efforts were provided in order to permanency for the child. Response: The final rule deletes the make a foster-care placement or order 4. Other Suggested Edits for Active proposed provision, PR § 23.106, termination of parental rights to an Efforts directed at agencies providing active Indian child, so the active-efforts requirement must be satisfied as of each Comment: A few commenters efforts because 25 U.S.C. 1912(d) is suggested adding a requirement that directed at what State courts must find of those determinations. The requirement to conduct active efforts State courts consult with Tribes about prior to making certain determinations appropriate active efforts and actual in Indian child-custody proceedings. necessarily ends at termination of parental rights because, at that point, performance of active efforts. Nevertheless, the statute and final rule there is no service or program that Response: The definition of ‘‘active provide that the State court must would prevent the breakup of the Indian efforts’’ includes working in partnership conclude that active efforts were family. with the Indian child’s Tribe to the provided and were unsuccessful prior to maximum extent possible. See FR ordering an involuntary foster-care 3. Documentation of Active Efforts § 23.2. placement or termination of parental Comment: Several commenters Comment: A commenter rights. See 25 U.S.C. 1912(d); FR supported the proposed requirement recommended establishing that the § 23.120. Thus, if a detention, that State courts document that the standard of proof to make a finding of jurisdiction, or disposition hearing in an agency used active efforts. Several also ‘‘active efforts’’ is the same standard of involuntary child-custody proceeding requested clarifying that documentation proof for the underlying proceeding includes a judicial determination that of active efforts must be made part of (e.g., clear and convincing evidence for the Indian child must be placed in or the court record. foster-care proceedings and beyond a remain in foster care, the court must Response: The final rule continues to reasonable doubt for termination-of- first be satisfied that the active-efforts provide that documentation of active parental-rights proceedings). requirement has been met. In order to efforts must be part of the court record. Response: The Department declines to satisfy this requirement, active efforts See FR § 23.120(b). The active-efforts establish a uniform standard of proof on should be provided at the earliest point requirement is a key protection this issue in the final rule, but will possible. provided by ICWA, and it is important continue to evaluate this issue for consideration in any future Comment: A commenter suggested that compliance with the requirement is rulemakings. clarifying that active efforts should documented in the court record. 25 continue even after the return of a child U.S.C. 1914 permits an Indian child, H. Emergency Proceedings to parental custody, if necessary to parent, Indian custodian, or Tribe to petition a court of competent The provisions concerning prevent the future breakup of the Indian jurisdiction to invalidate a foster-care jurisdiction over Indian child-custody family. placement or termination of parental proceedings are ‘‘[a]t the heart of the Response: If a child is returned to rights upon a showing that the action ICWA,’’ with the statute providing that parental custody and there is no violated section 1912 of the statute. The Tribes have exclusive jurisdiction over pending child-custody proceeding, then parties to the proceeding also have some child-custody proceedings and ICWA no longer applies. If a child- appeal rights under State law. In order presumptive jurisdiction over others. custody proceeding is ongoing, even to effectively exercise these rights, there Holyfield, 490 U.S. at 36. Recognizing, after return of the child, then active must be a record of the basis for the however, that a Tribe may not always be efforts would be required before there court’s decision with regard to active able to take swift action to exercise its may be a subsequent foster-care efforts and other ICWA requirements. jurisdiction, Congress authorized States placement or termination of parental Comment: Some commenters to take temporary emergency action. rights. suggested adding a requirement that Specifically, section 1922 of ICWA was designed to ‘‘permit, under applicable Comment: A few commenters agencies’ documentation of the active State law, the emergency removal of an suggested adding that active efforts are efforts be provided to the Tribe and all Indian child from his parent or Indian required in voluntary service parties involved as well. Response: The final rule requires that custodian or emergency placement of agreements and differential/alternative active efforts be documented in detail in such child in order to prevent imminent response programs to prevent removal. the record, which the parties to the case physical harm to the child Response: Voluntary service should have access to. See FR notwithstanding the provisions of’’ agreements and differential/alternative §§ 23.120(b), 23.134. ICWA. H.R. Rep. No. 95–1386, at 25; 25 response programs may help prevent Comment: Commenters also suggested U.S.C. 1922. removal of an Indian child; however, requiring the court to address active Congress, however, imposed strict these are not ‘‘child-custody efforts at each hearing. limitations on this emergency authority, proceedings’’ within the scope of the Response: The final rule reflects that requiring that the emergency proceeding Act. the court must conclude that active terminates as soon as it is no longer

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required. ICWA requires that State Indian Tribe, and (3) it has not been proceedings at FR § 23.113. There is no officials ‘‘insure’’ that Indian children possible to initiate an ICWA child- statutory authority for establishing a are returned home (or transferred to custody proceeding. Id. Allowing a different standard. their Tribe’s jurisdiction) as soon as the court to extend an emergency Comment: One commenter suggested threat of imminent physical damage or proceeding if it makes those findings defining the term ‘‘emergency’’ or better harm has ended, or that State officials provides appropriate flexibility for a specifying what ‘‘imminent physical ‘‘expeditiously’’ initiate a child-custody court that finds itself facing what the damage and harm’’ is, to better clarify proceeding subject to all ICWA Department expects should be unusual whether, for example, a child may be protections. 25 U.S.C. 1922. Thus the circumstances. removed, under an emergency removal, rule emphasizes that an emergency A number of commenters expressed from a parent who fails to get the child proceeding pursuant to section 1922 concerns regarding the requirement that to school. needs to be as short as possible and the emergency removal or placement Response: The final rule relies on the includes provisions that are designed to must terminate when such removal or statutory phrase ‘‘imminent physical achieve that result. placement is no longer necessary to damage or harm’’ and does not provide In addition to requiring that any prevent imminent physical damage or a further definition, as discussed above. emergency proceeding be as short as harm to the child. These comments The statutory phrase, however, is clear possible, the rule places a presumptive assume that the statutory mandate and the commenter’s example of failure outer bound on the length of such requiring the termination of the to get the child to school, standing emergency proceeding. The final rule emergency proceeding means that the alone, would not qualify as ‘‘imminent provides that an emergency proceeding actual placement of the child must physical damage or harm’’ justifying an for an Indian child should not be change. That is not necessarily the case. emergency proceeding (and attendant continued for more than 30 days unless If an Indian child can be safely returned delay of compliance with ICWA section the court makes specific findings. These to a parent, the statute requires this (as 1912). provisions are included because, unless do many State laws). In this Comment: A few commenters noted there is some kind of time limit on the circumstance, the State agency may still that each State may have a different or length of an emergency proceeding, the initiate a child-custody proceeding, if broader basis for emergency removal. safeguards of the Act could be evaded circumstances warrant. But, if the child Response: As discussed above, the by use of long-term emergency cannot be safely returned to the parents Department believes that section 1922’s proceedings. An unbounded use of or custodian, the child must either be use of ‘‘imminent physical damage or section 1922’s emergency proceeding transferred to the jurisdiction of the harm’’ is in accord with the emergency- authority would thwart Congress’s appropriate Indian Tribe, or the State removal provisions of most States’ laws. intent—reflected in section 1922’s must initiate a child-custody The Department recognizes, however, immediate termination provisions—to proceeding. Under this scenario, the that a State may have a different or strictly constrain State emergency child may end up staying in the same broader basis for immediate removals authority to the minimum time placement, but such placement will not and placements. Regardless of how the necessary to prevent imminent physical be under the emergency proceeding State defines emergency removals and damage or harm to the Indian child. provisions authorized by section 1922. The Department believes, based on its Instead, that placement would need to the triggers for emergency removals, review of comments and its own be pursuant to Tribal law (if the child ICWA requires that an emergency understanding of emergency is transferred to the jurisdiction of the proceeding terminate immediately when proceedings, that a presumptive 30-day Tribe) or comply with the relevant the removal or placement is no longer limit on the use of the emergency ICWA statutory and rule provisions for necessary to prevent imminent physical proceeding authority in section 1922 is a child-custody proceeding (if the State damage or harm to the child. appropriate. Even if a safe return of the retains jurisdiction). States must comply with ICWA’s child to her parent or custodian is not limitations on such removals and possible in that time frame, it is unlikely 1. Standard of Evidence for Emergency placements. Upon removing an Indian that a court should need longer than 30 Proceedings child, the State must either determine days to either transfer jurisdiction of the See also comments and responses that there is a risk of ‘‘imminent child’s case to her Tribe or to require the above regarding the definition of physical damage or harm’’ to the child initiation of a child-custody proceeding, ‘‘imminent physical damage or harm.’’ and follow the requirements for an with the attendant ICWA protections. A Comment: Several commenters emergency proceeding, or it must court should be able to accomplish one opposed the proposed regulation’s immediately terminate the emergency of those tasks within 30 days. standard that emergency removal is proceeding and initiate a child-custody Should the court need the emergency necessary to prevent ‘‘imminent proceeding and, if appropriate, return proceeding of an Indian child to last physical damage or harm’’ and a few the child to her parent(s) or Tribe. longer than 30 days, however, it may commenters suggested alternative Comment: Several commenters also extend the emergency proceeding if it standards for when emergency removal asserted that, to the extent ICWA’s basis makes specific findings. See FR is appropriate (e.g., the best interests of for emergency removal is narrower for § 23.113(e). The final rule tailors those the child or ‘‘substantial and immediate Indian children, the rule places them at findings more closely to the statutory danger or threat of such danger.’’) a greater risk of injury or death than requirements of section 1922 than did Response: The Act addresses non-Indian children. the draft rule. A court may extend an emergency proceedings at section 1922, Response: ICWA’s standard of emergency proceeding only if it makes establishing that requirements of the Act ‘‘imminent physical damage or harm’’ is the following determinations: (1) The may not be construed to interfere with focused on the health, safety, and child still faces imminent physical any emergency proceeding under State welfare of the child, such that Indian damage or harm if returned to the parent law to prevent ‘‘imminent physical children will not be placed at a greater or Indian custodian, (2) the court has damage or harm’’ to the Indian child. risk than non-Indian children. As been unable to transfer the proceeding The regulations incorporate this discussed above, the ICWA standard is to the jurisdiction of the appropriate statutory standard for emergency similar to that of many States.

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Comment: A few commented on the a non-Indian home, and then takes 45-day presumptive deadline by which provision allowing continuation of months to even notify the family of the an adjudicatory hearing must be held, to emergency custody beyond 30 days in custody. This commenter stated that ensure the parent receives a hearing ‘‘extraordinary circumstances.’’ One placing the child directly into the home within a meaningful time. commenter stated that the of a preferred placement allows for an Response: The basis for the circumstances need to be better defined unbroken connection to the Tribe and presumptive 30-day outer limit for an to prevent the exception from family. emergency proceeding is discussed swallowing the rule. Response: The Act does not explicitly above. The rule’s emergency Response: The final rule implements require that emergency placements proceedings provisions are designed to the statutory mandate that an emergency comply with the placement preferences, ensure that such removals/placements proceeding involve only the temporary so the rule does not include this be as short as possible and that the suspensions of full ICWA compliance, suggestion. As a recommended practice, Indian children be returned home (or and that the agency must initiate a however, States should make emergency transferred to their Tribe’s jurisdiction) child-custody proceeding that complies placements of Indian children in as soon as the threat of imminent with all the notice, timing, hearing, and accordance with the placement physical damage or harm has ended, or other requirements of ICWA as soon as preferences whenever possible and as that State officials ‘‘expeditiously’’ possible, if the child is not returned to soon as possible. This will help prevent initiate a child-custody proceeding his Tribe. The final rule deletes the subsequent disruptions if the child subject to all ICWA protections. provision in the proposal allowing for needs to be moved to a preferred The concerns that the 30-day limit is ‘‘extraordinary circumstances’’ to justify placement once a child-custody too short are addressed through continued emergency proceedings proceeding is initiated. adjusting the rule’s language regarding because the Act is clear that the the circumstances under which the time 3. 30-Day Limit on Temporary Custody emergency proceeding must terminate period may be extended, as discussed immediately when no longer necessary Comment: Several commenters above. See FR § 23.113(d). Notably, in to prevent imminent physical damage or supported the provision at FR light of the comments received, these harm to the child. There is a continuing § 23.113(f) prohibiting continuation of changes include deleting the obligation to determine whether the emergency removal or placement requirement for obtaining a qualified imminent physical damage or harm is beyond 30 days without the initiation of expert witness by that time. no longer present. As discussed above, a full ICWA-compliant child-custody The rule does not specify that a the final rule includes a presumptive proceeding, to clarify that emergency hearing should be held within 72 hours 30-day limit on an emergency proceedings must terminate as soon as of removal. While providing a hearing proceeding, but allows a court in very they are no longer necessary to prevent within 1–3 days of removal may be limited circumstances to extend that imminent physical damage or harm to required to comply with State law or to period by making certain findings. See the child. The National Council of provide the parents or custodian with FR § 23.113(d). Juvenile and Family Court Judges stated constitutionally required due process, Comment: Several commenters that this provision, and shortening the the provision of such a hearing is not an pointed out that some State agencies, as time period for temporary custody ICWA-specific requirement, so it is not a practice, continue emergency without a hearing from 90 to 30 days, required by the rule. placements for indeterminate times align with key principles of avoiding Comment: Two commenters stated without ICWA compliance, and that the unnecessary separation of children and there are difficulties in obtaining emergency placements ultimately families and are best practices. qualified expert witness testimony in a became long-term placements. A few commenters opposed making timely fashion and that the timeframe Response: The final rule addresses the 30-day provision a mandate. One would be increasingly difficult if the this issue by implementing the statutory commenter stated that agencies may Tribe were out of State, the Tribe were intention for emergency proceedings to avoid emergency removals or remove unable or unwilling to provide an be of limited duration. See FR § 23.113. children earlier than appropriate to expert, or the exact Tribe is unknown. Comment: One commenter suggested avoid the detailed steps to necessary Another commenter noted that Tribes changing the language ‘‘removal or satisfy this section, resulting in Indian have up to 30 days to respond to notice, placement’’ with ‘‘emergency removal children being less protected from harm. making it nearly impossible to secure or emergency placement’’ to clarify that A few commenters stated that a expert witness testimony in that time. A this section applies only in the shorter time should be included in the commenter also stated that New Mexico emergency removal context. rule. One commenter noted that, often, allows for adjudication of an abuse/ Response: The final rule adds this returning a child to a parent within 72 neglect petition to occur within 60 days clarification. See FR § 23.113. hours will not result in imminent but the proposed rule’s requirements for physical damage or harm. Another clear and convincing evidence at an 2. Placement Preferences in Emergency commenter suggested that State law earlier stage (emergency stage) would Proceedings should govern the timing of the initial cause more than one full evidentiary Comment: A few commenters evidentiary hearing, provided it is no hearing on whether the parent’s custody suggested the rule should explicitly longer than 72 hours after removal (and is likely to result in imminent physical state that placement preferences apply then that the removal may not last damage or harm. to emergency placements as a type of beyond 30 days without a section Response: The final rule deletes from foster-care placement ‘‘whenever 1912(e)-compliant foster care hearing). the emergency proceeding requirements practical and appropriate’’ or Commenters noted that allowing for certain requirements that apply to child- ‘‘whenever possible.’’ One commenter longer periods of removal will make custody proceedings (e.g., requirement stated that they have often seen return to parental custody increasingly for a qualified expert witness and clear situations where an agency removes an more difficult due to a combination of and convincing evidence) because Indian child as an emergency removal agency practice and consequential section 1922 of ICWA does not impose when there was no emergency or the trauma to the parents from separation. such requirements on emergency emergency subsided, places the child in One commenter also suggested adding a proceedings and, as the commenters

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noted, compliance with these including notice requirements. See FR Response: The final rule continues to requirements may not be practically §§ 23.110, 23.113. use the term ‘‘promptly,’’ recognizing possible. Comment: A State commenter stated that different States may have different that it is unclear what is meant by timeframes for being able to hold such 4. Emergency Proceedings—Timing of a hearing. See FR § 23.113(b)(2). Notice and Requirements for Evidence ‘‘substantive proceedings, rulings or decisions on the merits’’ and how it Comment: A commenter suggested Comment: Several commenters relates to emergency removals (shelter clarifying in PR § 23.113(a)(2) and (a)(3) opposed the proposed rule’s care hearings). Another State that if the agency determines the requirements for notice and time limits commenter requested clarification that emergency has ended, it should to apply to emergency hearings (known ‘‘on the merits’’ means this section does promptly return the child without the in various States as 72-hour hearings, not apply to emergency removals. need for a hearing. A hearing should be detention hearings, shelter care Response: The final rule deletes the required only when a court order hearings, and other terms). These phrase ‘‘substantive proceedings, entered in connection with the commenters stated that it is not possible rulings, or decisions on the merits’’ from emergency removal must be vacated or to comply with the time limits (e.g., what was PR § 23.111(h) and clarifies dismissed. waiting until 10 days after each parent, that the section 1912(a) notice Response: State procedures determine the Indian custodian, and Tribe have provisions and waiting periods for whether a hearing is required. Comment: A commenter asked received notice before beginning the notices do not apply to emergency whether the notice requirements in PR proceeding) and comply with State law proceedings. requiring a hearing shortly following § 23.113(b)(5), to ‘‘take all practical emergency removal. A State commenter 5. Mandatory Dismissal of Emergency steps to notify’’ are intended to be so stated that once a child is removed on Proceedings radically different from the notice requirements for foster care, which an emergency basis, a petition must be Comment: A few commenters stated requires 10 days advance notice. A few filed within 48 hours, and the petition that PR § 23.110 and PR § 23.113 commenters suggested more definition is the commencement of the proceeding, conflict in that PR § 23.110 says that a then a hearing must be held the next of ‘‘practical steps’’ is needed. One of State court must dismiss the proceeding these commenters suggested adding judicial day to determine if it is a if it determines it lacks jurisdiction, and notice via personal service, email, dependency action, then a jurisdiction PR § 23.113 says States must transfer the telephone, registered mail, and fax. A hearing is held within 21 days, at which proceeding. A commenter stated that the few commenters suggested that notice time the petition is confirmed. The wording of PR § 23.110(a) creates a by registered mail should be required in proposed rule’s statement that a safety issue because it implies that addition to taking all practical steps to proceeding may not begin means the transferring to Tribal court is not an notify the parents or Indian custodian petition may not be filed (again, option and would result in cases being and Tribe. resulting in either a delayed return to dismissed where children were at Response: Notice by registered or parents or no initial removal to the imminent risk of harm. certified mail is not required by ICWA detriment of the child). Commenters Response: The mandatory dismissal for emergency proceedings because suggested adding to the end of PR provisions in § 23.110 apply ‘‘subject section 1922 does not require such § 23.111(h) and at the beginning of PR to’’ § 23.113 (emergency proceedings). notice and because of the short § 23.112 exceptions for emergency Section 1922 of the Act allows removal timeframe in which emergency removals and emergency placements. and placement under State law to proceedings are conducted to secure the Response: The final rule does not prevent imminent physical damage or safety of the child (although there may require that the section 1912(a) notice harm to the child. See FR § 23.110. be relevant State or due process provisions and waiting periods for requirements). In order to protect the notices apply to emergency proceedings. 6. Emergency Proceedings Subsection- by-Subsection parents’, Indian custodians’, and Tribes’ These requirements are not imposed by rights in these situations, however, it is section 1922. The final rule does, Comment: With regard to PR a recommended practice for the agency however, indicate that agencies should § 23.113(a)(1), a commenter stated that to take all practical steps to contact report to the court on their efforts to because the terms ‘‘proper’’ and them. This likely includes contact by contact the parents, custodian, and ‘‘continues to be necessary’’ are telephone or in person and may include Tribe for emergency proceedings. FR subjective and open to culturally biased email or other written forms of contact. § 23.113(c). interpretation, the investigation should Comment: A commenter suggested Comment: Several commenters stated include input from a qualified expert specifying that notice of an emergency that, where it is impossible to notify the witness, Tribal representatives, and removal and emergency placement must Tribe and give adequate time to members of the child’s extended family fully inform the parents and the Tribe intervene or transfer, the decision not connected with the emergency who promptly of the timing of the emergency should not be binding on the party that have a relationship with the child. hearing and basis for the removal, did not receive notice. Response: The final rule uses the term including copies of the petition, Response: To the extent the ‘‘necessary’’ because that is the term the affidavit and any evidence in support of commenters are concerned that statute uses. See 25 U.S.C. 1922. See FR the emergency removal, the parents and emergency placements may become § 23.113(b)(1). Indian custodian be advised of the full permanent placements, the final rule Comment: With regard to PR scope of their rights at the hearing, confirms that emergency proceedings § 23.113(a)(2), a few commenters including the right to be present, to must terminate as soon as the suggested ‘‘promptly hold a hearing’’ contest the allegations, to testify, and to emergency ends and, at that point, needs a more definitive timeframe. One call witnesses and introduce evidence, either the child must be returned to the of these commenters suggested cross-examine adverse witnesses, and to parent, custodian, or Tribe or the State replacing ‘‘promptly hold a hearing’’ have counsel appointed. must initiate a child-custody proceeding with ‘‘promptly, but in no case beyond Response: These requirements are not following ICWA’s requirements, 72 hours, hold a hearing.’’ specified by section 1922 and so are not

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included in the rule (although there may domicile, where the child has been terminate as soon as the Tribal court be relevant State and due process living for the past 5 years, and prior issues an order for the placement to requirements). Any emergency court proceedings. terminate, instead of when the Tribe proceeding pursuant to section 1922, Response: This rule addresses exercises jurisdiction. The commenters however, is required to be as short as implementation of ICWA and does not stated that this would better allow the possible, after which the child is to be address implementation of UCCJEA, so Tribe the opportunity to decide whether returned to the parent, custodian, or it does not include such requirements. the placement should continue. Tribe or a child-custody proceeding Comment: A commenter suggested Response: A State court may with all the attendant ICWA protections adding a requirement in PR terminate an emergency proceeding by is to be initiated. § 23.113(d)(3) that the petition include transferring the child to the jurisdiction Comment: A few commenters pointed efforts to locate extended family of the appropriate Indian Tribe. See 25 out that PR § 23.113(c) is missing. members. U.S.C. 1922; FR § 23.113(b)(4)(ii). The Response: The final rule addresses Response: The final rule does not add child may stay in a particular placement this omission. the requested requirement because it is if the Tribe chooses to keep that Comment: One commenter noted that not required by the statute; however, it placement upon exercising jurisdiction. the requirements in PR § 23.113(d)(7) is a recommended practice to make Comment: A commenter suggested the and (d)(9) (requiring the affidavit to efforts to locate extended family placement terminate as soon as the include the circumstances leading to the members as soon as possible. emergency no longer exists or a solid emergency removal and active efforts Comment: A commenter suggested safety plan is in place, in which case taken) and PR § 23.113(f) (requiring amending PR § 23.113(d)(3) to require dismissal may be appropriate at an early custody to continue beyond 30 days the petition to include a statement that stage. only if certain circumstances exist) if the domicile or residence of the Response: A safety plan may be a mirror requirements of the Oklahoma parents or Indian custodian is unknown, solution to mitigate the situation that ICWA and are the ‘‘gold standard’’ that a detailed description of the efforts gave rise to the need for emergency resulting in faster identification of to identify them, including notice to the removal and placement and allow the Indian children, streamlined Tribal Tribal social services agency, State to terminate the emergency involvement, faster placements in submission of an affidavit of service by proceeding. If the State court finds that preferred homes, and less time out of publication, and other avenues such as the implementation of a safety plan home. the Tribal enrollment office or posting means that emergency removal or A commenter stated concern that a on the Tribal bulletin board or placement is no longer necessary to failure to include any of the required newsletter, for parents who are hard to prevent imminent physical damage or elements in the affidavit may result in locate. harm, the child should be returned to denial of the petition, even if the child Response: The final rule states that the parent or custodian. The State may is in imminent danger. the petition or accompanying still choose to initiate a child-custody One commenter stated that the documents should include a description proceeding, or may transfer the case to information required by PR § 23.113(d) of the steps taken to locate and contact the jurisdiction of the Tribe. to be included in the affidavit is already the child’s parents, custodians and Comment: A commenter stated that included in the State’s dependency Tribe about any emergency proceeding, requiring termination of the emergency petitions, and requested adding that but does not specify the detail suggested removal as soon as the imminent such information is required only if the by the commenter. physical damage or harm no longer petition does not already include the Comment: A commenter expressed exists is unworkable in Montana information. concern that requiring a factual because Montana requires parents to Response: The final rule states that determination on the need for continued work on treatment plan tasks and make either the petition or accompanying removal at every hearing may result in progress before the State will return the documents (which may include an fewer protections for parents because a children. The commenter stated that the affidavit) should include a statement of full evidentiary hearing for the proposed rule provision subverts that the imminent physical damage or harm emergency hearings would give States Montana process and allows for expected and any evidence that the cause to extend the deadline for the first unlimited challenge to the State’s out- removal or emergency custody hearing. For this reason, the commenter of-home placement. continues to be necessary to prevent suggested deleting PR § 23.113(e). Response: Under the statute, the such imminent physical damage or Response: Because of the statutory emergency removal and placement must harm to the child (which was listed in requirement to ‘‘insure’’ that emergency end when no longer necessary to proposed 23.113(d)(10)). See FR proceedings terminate ‘‘immediately’’ prevent imminent physical damage or § 23.113(d). This information is when the emergency has ended, the harm to the child. If the court finds that appropriate under ICWA section 1922. State court (and agency) have a the parent must make progress on The final rule separately lists additional continuing obligation under section specified case plan items in order to information (which was listed in PR 1922 to evaluate whether the emergency prevent imminent physical damage or §§ 23.113(c)(1)–(10)), that should be situation has ended. The court therefore harm to the child, that is permissible included in the petition or needs to revisit that issue at each under ICWA. The State agency may also accompanying documents. Inclusion of opportunity. The Department does not promptly initiate a child-custody these items is a recommended practice agree that this will result in fewer proceeding with all the attendant ICWA and, as a commenter noted, the ‘‘gold protections for parents because an protections. standard’’ for ICWA implementation. assessment of the need for continued Comment: A few State commenters Comment: A commenter suggested removal will occur at each hearing, stated that requiring an agency to incorporating some of the requirements meaning the parent has the opportunity expeditiously ‘‘initiate a child-custody of the Uniform Child Custody for return of the child at each hearing. proceeding subject to the provisions of Jurisdiction & Enforcement Act Comment: A few commenters ICWA’’ as one of the options following (UCCJEA) section 209 regarding suggested rewording PR § 23.113(g) to termination of emergency removal is determination of a child’s residence or provide that the placement must confusing because the emergency

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removal petition is considered an standard in ICWA section 1920 Id. at 11. Tribal-court jurisdiction initiation of a child-custody proceeding. (‘‘substantial and immediate danger or remedies this problem. Other commenters stated that the ICWA threat of danger’’) specific to improper Tribal courts are also well-equipped proceeding should be initiated at the removals rather than the standard in 25 to handle child-welfare proceedings, same time as the emergency proceeding, U.S.C. 1922 (‘‘imminent physical including those involving non-member because emergency proceedings are damage or harm’’) specific to emergency parents. Congress has repeatedly sought generally only subject to State law. removals. A commenter requested to strengthen Tribal courts, and has Response: The statute treats adding ‘‘Indian’’ before ‘‘custodian.’’ recognized that Tribal justice systems emergency proceedings, at section 1922, Response: The final rule incorporates are an essential part of Tribal differently from other child-custody these suggested changes to more closely governments. 25 U.S.C. 3601(5), proceedings. The final rule clarifies reflect the statutory language. See FR 3651(5); see also S. Rep. No. 103–88, at ‘‘emergency proceedings’’ to be § 23.114(b). 8 (1993) (noting that 25 U.S.C. 3601(6) emergency removals and emergency Comment: A few State commenters ‘‘emphasize[s] that tribal courts are placements, which are proceedings stated that the proposed rule’s permanent institutions charged with distinct from ‘‘child-custody provisions on improper removal exceed resolving the rights and interests of both proceedings’’ under the statute. While ICWA and are beyond BIA’s authority. Indian and non-Indian individuals’’); States use different terminology (e.g., One stated there is no standard for when Indian Self-Determination and preliminary protective hearing, shelter a person can request a stay and demand Education Assistance Act of 1975, 25 hearing) for emergency hearings, the an additional hearing to determine if U.S.C. 450, 450a (providing funding and regulatory definition of emergency removal was improper, and the other assistance for Tribal government proceedings is intended to cover such stated that requiring an immediate stay institutions, including courts); Indian proceedings as may be necessary to creates a substantive requirement that Tribal Justice Act of 1993, 25 U.S.C. prevent imminent physical damage or may unreasonably preclude the State 3601 et seq. (establishing the Office of harm to the child. The emergency protective services from securing an Tribal Justice Support within the proceedings should be as short as order of protection from the court. Bureau of Indian Affairs and authorizing up to $50 million annually to assist possible and may end with the initiation Response: The final rule replaces the of a child-custody proceeding subject to Tribal courts). requirement for the State court to stay The final rule reflects 25 U.S.C. the provisions of ICWA (e.g., the notice the proceedings with a requirement that required by § 23.111, time limits 1911(b)’s requirement that a child- the State court expeditiously make the custody proceeding be transferred to required by § 23.112). determination as to whether the removal Comment: One commenter stated that Tribal court upon petition of either was improper. See FR § 23.114(a). parent or the Indian custodian or the the provision at PR § 23.113(h) requiring Comment: A commenter suggested a child to be returned to a parent within Indian child’s Tribe, except in three rewording this section to require the circumstances: (1) where either parent one business day may not be possible in court to terminate the proceeding and parts of Alaska in which villages can be objects; (2) where the Tribal court return the child if any party asserts declines the transfer; or (3) where there weathered out for days. improper removal or the court has Response: The statute provides that is good cause to the contrary. The first reason to believe the removal was two exceptions are fairly emergency removal and placement must improper due to expert testimony not end when no longer necessary to straightforward. The third exception is having been presented at the time of not defined in the statute, and in the prevent imminent physical damage and removal. harm. We understand that it may not be Department’s experience, has in the past Response: The final rule does not possible to return a child within one been used to deny transfer for reasons incorporate this suggestion because the business day. that frustrate the purposes of ICWA. The statute does not require expert legislative history indicates that this 7. Emergency Proceedings— testimony at the time of removal. provision is intended to permit a State Miscellaneous J. Transfer to Tribal Court court to apply a modified doctrine of Comment: A few commenters forum non conveniens, in appropriate suggested replacing the term 25 U.S.C. 1911(b) provides for the cases, to insure that the rights of the ‘‘emergency physical custody’’ with transfer of any State court proceeding child as an Indian, the Indian parents or ‘‘emergency placement’’ for consistency. for the foster-care placement of, or custodian, and the Tribe are fully Response: The final rule incorporates termination of parental rights to, an protected. See H.R. Rep. No. 95–1386, at this suggestion. Indian child not domiciled or residing 21. The Department finds that this within the reservation of the Indian indicates that Congress intended for the I. Improper Removal child’s Tribe. This provision recognizes transfer requirement and its exceptions FR § 23.114 implements section 1920 that Indian Tribes maintain concurrent to permit State courts to exercise case- of the statute. It requires that, where a jurisdiction over child-welfare matters by-case discretion regarding the ‘‘good court determines that a child has been involving Tribal children, even off of cause’’ finding, but that this discretion improperly removed from custody of the the reservation. In enacting ICWA, should be limited and animated by the parent or Indian custodian or has been Congress recognized that child-custody Federal policy to protect the rights of improperly retained in the custody of a matters involving Tribal children are the Indian child, parents, and Tribe, petitioner in a child-custody ‘‘essential tribal relation[s],’’ see which can often best be accomplished proceeding, the court should return the Williams v. Lee, 358 U.S. 217 (1959), in Tribal court. Exceptions cannot be child to his parent or Indian custodian that fall squarely within a Tribe’s right construed in a manner that would unless returning the child to his parent to govern itself. H.R. Rep. No. 95–1386, swallow the rule. or custodian would subject the child to at 14–15. Congress also recognized that Accordingly, the final rule does not a substantial and immediate danger or State courts were often not well- mandate or instruct State courts as to threat of such danger. 25 U.S.C. 1920. informed about Indian culture, and may how they must conduct the good-cause Comment: A commenter stated that not correctly assess the standards of analysis. Rather, the final rule provides PR § 23.114(b) should refer to the child abuse and neglect in this context. certain procedural protections, and also

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identifies a limited number of perceived cultural connections with the termination-of-parental-rights considerations that should not be part of Tribe or reservation. Congress enacted proceedings, transfer may be the good-cause analysis because there is ICWA in express recognition of the fact appropriate to provide a higher standard evidence Congress did not wish them to that State courts and agencies were of protection of the rights of the parent be considered, or they have been shown generally ill-equipped to recognize the or Indian custodian under ICWA section to frustrate the application of 25 U.S.C. essential tribal relations of Indian 1921, and ICWA section 1919 allows 1911(b) and the purposes of ICWA, or people and the cultural and social States and Tribes to enter into would otherwise work a fundamental standards prevailing in Indian agreements to transfer jurisdiction of unfairness. FR § 23.118. Specifically: communities and families. 25 U.S.C. any child-custody proceeding on a case- • The final rule prohibits a finding of 1901(5). It would be inconsistent with by-case basis. Another commenter good cause based on the advanced stage congressional intent to permit State asserted that ICWA section 1911 applies of the proceeding, if the parent, Indian courts to evaluate the sufficiency of an to both involuntary and voluntary custodian, or Indian child’s Tribe did Indian child’s cultural connections with proceedings, and that, in any case, the not receive notice of the proceeding a Tribe or reservation in evaluating a biological parent can veto a transfer so until an advanced stage. This protects motion to transfer. that he or she is not forced into a forum the rights of the parents and Tribe to • The final rule prohibits foreign to him or her. seek transfer where ICWA’s notice consideration of any perceived Response: Like the statute, the final provisions were not complied with, and inadequacy of judicial systems. This is rule addresses transfer of foster-care- thus will help to promote compliance consistent with ICWA’s strong placement and termination-of-parental- with these provisions. It also ensures recognition of the competency of Tribal rights proceedings. See FR § 23.115; 25 that parties are not unfairly advantaged fora to address child-custody matters U.S.C. 1911(b). And, like the statute, the or disadvantaged by noncompliance involving Tribal children. It is also final rule’s provisions addressing with the statute. consistent with section 1911(d)’s • transfer apply to both involuntary and The final rule prohibits a finding of requirement that States afford full faith voluntary foster-care and termination- good cause based on whether there have and credit to public acts, records, and of-parental-rights proceedings. This been prior proceedings involving the judicial proceedings of Tribes to the includes termination-of-parental-rights child for which no petition to transfer same extent as any other entity. proceedings that may be handled was filed. ICWA clearly distinguishes • The final rule prohibits concurrently with adoption between foster-care and termination-of- consideration of the perceived proceedings. Parties may request parental-rights proceedings, and these socioeconomic conditions within a transfer of preadoptive and adoptive proceedings have significantly different Tribe or reservation. In enacting ICWA, placement proceedings, but the implications for the Indian child’s Congress found that misplaced concerns standards for addressing such motions parents and Tribe. There may be about low incomes, substandard are not dictated by ICWA or these compelling reasons to not seek transfer housing, and similar factors on regulations. Tribes possess inherent for a foster-care proceeding, but those reservations resulted in the unwarranted reasons may not be present for a removal of Indian children from their jurisdiction over domestic relations, termination-of-parental-rights families and Tribes. E.g., H.R. Rep. at including the welfare of child citizens of proceeding. 12. Congress also found that States the Tribe, even beyond that authority • The final rule prohibits a finding of ‘‘have often failed to recognize the confirmed in ICWA. See, e.g., Holyfield, good cause based on predictions of essential Tribal relations of Indian 490 U.S. at 42 (1989) (‘‘Tribal whether the transfer could result in a people and the cultural and social jurisdiction over Indian child-custody change in the placement of the child; standards prevailing in Indian proceedings is not a novelty of the this has been altered slightly from the communities and families.’’ See 25 ICWA.’’); Fisher v. Dist. Court, 424 U.S. proposed rule, which could be read to U.S.C. 1901(5). These factors can 382, 389 (1976) (pre-ICWA case assume that a State court could know or introduce bias into decision-making and recognizing that a Tribal court had predict which placement a Tribal court should not come into play in exclusive jurisdiction over an adoption might consider or ultimately order. As considering whether transfer is proceeding involving Tribal members an initial matter, these predictions are appropriate. residing on the reservation). Thus, it often incorrect. Like State courts, Tribal State courts retain the ability to may be appropriate to transfer courts and agencies seek to protect the determine ‘‘good cause’’ based on the preadoptive and adoptive proceedings welfare of the Indian child, and would specific facts of a particular case, so involving children residing outside of a consider whether the current placement long as they do not base their good reservation to Tribal jurisdiction in best meets that goal. Further, the cause finding on one or more of these particular circumstances. transfer inquiry should not focus on prohibited considerations. Comment: Several commenters predictions or speculation regarding supported the provision at PR § 23.115 how the other tribunal might rule 1. Petitions for Transfer of Proceeding allowing for motions to transfer to be regarding placement or any other Comment: Several commenters stated made orally, stating that oral motions matter. ICWA recognizes that Tribal that the proposed rule’s provisions on are already allowed by court rules and courts are presumptively well- transfer exceed statutory authority by that by explicitly allowing for oral positioned to adjudicate child-custody allowing a transfer to Tribal court in any motions in the rule removes a hurdle to matters involving Tribal children. Tribal child-custody proceeding, whereas making a motion, particularly for parties courts will evaluate each case on an ICWA section 1911(b) explicitly not represented by counsel. individualized basis to determine addresses transfer only for foster-care Response: The final rule retains the whether a change in placement is in the placement and termination-of-parental- provision allowing for the petition to interests of the child, and if so, how to rights proceedings. Another commenter transfer to be made orally because effect the change in placement with the claimed there is authority to extend the nothing in the Act indicates that a minimum disruption to the child. transfer provisions to preadoptive and written document would be required. • The final rule prohibits a finding of adoptive proceedings because such FR § 23.115(a). For the purposes of this good cause based on the Indian child’s proceedings may occur as part of rule, an oral petition would be

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considered ‘‘filed’’ when made on the Tribes would have presumptive jurisdiction appears to hold out the record. jurisdiction over Indian children most promise for reunification of the Comment: One commenter requested domiciled outside of a reservation. See family. This may be for any number of specific language to clarify that parents 25 U.S.C. 1911(b) (the State court shall reasons, including geographic may request transfer to a Tribal court transfer such proceeding to the considerations, or because the State is even if the parents live off reservation. jurisdiction of the Tribe unless certain able to provide specialized services to Response: Nothing in the statute or conditions are present); Holyfield, 490 the parents or child that the Tribe rule limits the right to request transfer U.S. at 49. Establishing time limits for cannot. See, e.g., In re Interest of Zylena to parents who live on reservation. As seeking transfer would be contrary to R., 825 N.W.2d 173, 183 (Neb. 2013) confirmed by ICWA, Tribes retain this intent. (discussing that ‘‘a Tribe may have no authority over the welfare of Tribal The Department’s conclusion is also reason to seek transfer of a foster children, even when they reside outside consistent with the general approach placement proceeding’’ but ‘‘once the of a reservation. that courts take to deciding transfer goal becomes termination of parental Comment: A few commenters stated motions. For example, motions to rights, a Tribe has a strong cultural their support of the provision providing change venue pursuant to 28 U.S.C. interest in seeking transfer of that that transfer can be requested at any 1404 (the modern version of forum non proceeding to tribal court.’’). A parent stage. A few commenters opposed this conveniens where the alternative forum may defer moving to transfer a case for provision, stating that a time limit is within the territory of the United similar reasons. The Tribe or parent should be imposed. Commenters had States) may be granted at any time rationally decides that seeking transfer various suggestions for time limits to during the pendency of the case. See, of a foster-care proceeding would not impose on requests for transfer, ranging e.g., Chrysler Credit Corp. v. Country support the goal of reunification of the from, for example, within 30 days of Chrysler, Inc., 928 F.2d 1509, 1516 (10th Indian child with her parent(s). But notification to the parents, Indian Cir. 1991); see also H.R. Rep. No. 95– once the State abandons this goal, and custodians, and Tribe, to within 6 1386, at 21 (describing ICWA’s transfer seeks to terminate parental rights, the months of such notification. One provision as a ‘‘modified doctrine of Tribe’s or parent’s calculus might commenter suggested a time limit that forum non conveniens’’). The mere reasonably change. If time limits were would allow transfer until the order for passage of time is not alone a sufficient imposed for moving to transfer, Tribes foster-care placement or termination of reason to deny a motion to transfer might be forced to seek transfer early in parent rights has been entered. pursuant to 28 U.S.C. 1404; nor is it for a foster-care proceeding, even if that Commenters in support of imposing 25 U.S.C. 1911(b). outcome does not facilitate time limits on transfer stated that: The Department is cognizant that reunification. The Department believes • Congress implied there is a time child-custody matters involve children, that this would undermine the goals and limit because, while ICWA section 1911 for whom there may be special intent of ICWA, and not produce the addresses both transfer and considerations related to the passage of best outcomes for Indian children. intervention, it allows only for time and the need to minimize For these reasons, the final rule intervention ‘‘at any point in a disruptions of placements. As discussed provides that a request for transfer may proceeding;’’ elsewhere, the Department disagrees be made at any stage within each • ICWA does not allow for transfer that transfer to Tribal jurisdiction will proceeding. See FR § 23.115(b). A after termination of parental rights, so necessarily entail unwarranted request for transfer may be denied for time limits should prevent transfer of an disruption of an Indian child’s ‘‘good cause,’’ however, which is appeal of a foster-care order or placement in any particular case. Tribes discussed elsewhere. termination-of-parental-rights order; seek to protect the welfare of the Comment: Several commenters stated • When jurisdiction is transferred to children in their jurisdiction, which that the provision at PR § 23.115(b) a Tribe, the Tribe often changes the may mean in any particular case that a providing the right to transfer with child’s placement. If a child was in the current placement will be temporarily ‘‘each proceeding’’ is unclear as to previous placement for a long time and or permanently maintained. Under any whether it means each child-custody has developed attachments to that circumstances, the Department finds proceeding or each hearing. One placement, this can disrupt those that the strong Federal policy in support commenter supported just stating ‘‘any attachments; of Tribal jurisdiction over Tribal stage of the proceeding’’ as in PR • The Supreme Court warned in children weighs strongly in favor of no § 23.115(c) instead. Adoptive Couple v. Baby Girl that time limits for motions to transfer. Response: The final rule clarifies in parties should not be able to play the There are also compelling practical the definitions that, as relevant here, a ‘‘ICWA trump card at the eleventh reasons for the Department’s decision. ‘‘proceeding’’ is a foster-care-placement hour;’’ Although a commenter expressed or termination-of-parental-rights • Allowing transfer at any time concern about parents strategically proceeding, and that each proceeding rewards ‘‘deadbeat’’ parents who waiting to seek transfer to Tribal court, may include several ‘‘hearings,’’ which request transfer after a child has been in evidence suggests that opponents of are judicial sessions to determine issues a placement for an extended period of transfer can also behave strategically to of fact or of law. See FR § 23.2. The final time, causing extreme trauma for the thwart transfer. See, e.g. In the Interest rule permits a party to request transfer child for no reason. of Tavian B., 874 N.W.2d 456, 460 (Neb. at any stage in each proceeding. See, Response: The final rule does not 2016) (noting that State dismissed its e.g., In re Interest of Zylena R., 825 establish a deadline or time limit for motion to terminate parental rights to N.W.2d at 182–84. requesting transfer. It provides that the avoid transfer, leaving an Indian child Comment: One commenter suggested right to request a transfer is available at suspended in uncertainty). deleting PR § 23.115(b) and (c) as any stage in each proceeding. This And, the Department is aware of superfluous. adheres most closely to the statute, child-custody proceedings in which the Response: The final rule deletes which does not establish any time limits Tribe intervenes, but does not proposed paragraph (b) because for seeking transfer. Further, the statute immediately move to transfer the case paragraph (a) already captures that the indicates Congress’s understanding that because maintaining State-court right to transfer arises with each

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proceeding, and moves proposed courts must document the objection. See Several commenters stated that paragraph (c) to final paragraph (b). The FR § 23.117(a). limiting the discretion of State courts to final paragraph (b) is necessary to Comment: A few commenters deny transfer of a case to the Tribe was emphasize that the request to transfer suggested clarifying that a parent whose particularly helpful, and clarifies that may be made at any stage. See FR parental rights have been terminated Tribes have ‘‘presumptive jurisdiction’’ § 23.115. may not object. in child-welfare cases. Many Comment: A commenter suggested Response: If a parent’s parental rights commenters recounted their experiences revising PR § 23.115(a) to refer to have been terminated and this with State courts inappropriately ‘‘jurisdiction of the Tribe’’ rather than determination is final, they would no finding ‘‘good cause’’ to deny transfer ‘‘Tribal court’’ because in some cases longer be considered a ‘‘parent’’ with a based on the State court believing the the Tribe may not have a Tribal court. right under these rules to object. Tribe will make a decision different Comment: One Tribal commenter Response: The final rule incorporates from the one it would make, because of this suggested revision because it more stated that the regulations fail to respond to the ambiguity in section reliance on bonding with the foster closely matches the statute. See FR parents, bias against Tribes and Tribal § 23.115. 1911(b), which requires transfer ‘‘absent objection by either parent’’ but has been courts, or other reasons, and asked that Comment: A commenter requested incorrectly interpreted to require the rule help prevent denials on this adding the guardian ad litem and child transfer ‘‘provided that a parent does basis in the future. One commenter (at a minimum age) to those who may not object.’’ This commenter provided noted that State courts sometimes request transfer to Tribal court. several reasons for why ICWA’s employ a ‘‘best interests of the child’’ Response: The statute allows petition language does not require a court to analysis in determining whether to for transfer by the Indian child’s parent, deny transfer if a parent objects and transfer jurisdiction, but stated that the Indian custodian or Tribe only. The stated that the rule should clarify that question of whether to transfer is a statute does not expressly provide for the court still has the discretion to jurisdictional one that should not the child to request transfer. See 25 transfer even if a parent objects. implicate the best interests of the child, U.S.C. 1911(b). State courts, however, Response: The final rule mirrors the because ICWA recognizes that Tribal may permit motions to transfer from a statute in requiring transfer in the courts are fully competent to determine guardian ad litem and child. absence of a parent’s objection. The a child’s best interests. A few 2. Criteria for Ruling on Transfer House Report states ‘‘Either parent is commenters stated their support of the given the right to veto such transfer.’’ proposed rule’s statement that the Comment: One commenter noted the H.R. Rep. No. 95–1386, at 21. socioeconomic status of any placement provision at PR § 23.116 appeared in the Comment: A commenter suggested relative to another should not be 1979 guidelines and is necessary where that the guardian ad litem (where both considered as a basis for good cause to courts may otherwise deny transfer parents are unfit or unable to consider deny transfer because such reasoning based on the judge’s belief that transfer the welfare of the child) or child himself has been used in the past. is not in the child’s best interests. A few should have the ability to object to commenters suggested adding that Response: The limits imposed by the transfer. Another commenter stated that final rule are consistent with the Tribal jurisdiction is presumed in all if the child is permitted to object, there ICWA cases because Tribes have statutory language and congressional should be a minimum age requirement. intent in enacting ICWA. Congress concurrent and presumptive jurisdiction Response: The statute specifically directed that State courts ‘‘shall when an Indian child is domiciled addresses objection by ‘‘either parent’’ transfer’’ proceedings to the jurisdiction outside of a reservation. A few only; however, nothing prohibits the of the Tribe unless specified conditions commenters suggested stating that the State court from considering the were met. This indicates that Congress best interests of the Indian child objection of the guardian ad litem or intended transfer to be the general rule, presumptively favor granting the child himself in determining whether petition for transfer to improve ICWA there is good cause to deny transfer, not the exception. Congress also compliance. pursuant to the criteria identified in FR intended ICWA, and the transfer Response: The final rule, like the § 23.118. provision in particular, to protect the proposed rule, states that State courts ‘‘rights of the child as an Indian’’ as well must grant a petition to transfer unless 3. Good Cause To Deny Transfer as the rights of the Indian parents or one or more of three criteria are met. Comment: Several commenters custodian and the Tribe. H.R. Rep. No. This comports with the statute, which opposed the proposed rule’s approach 95–1386, at 21. If the ‘‘good cause’’ states that a State court ‘‘shall transfer’’ of defining what factors courts may not provision is interpreted broadly, or in unless these specified conditions are consider in determining good cause to ways that could permit decision-making present. The final rule does not add the deny transfer (see PR § 23.117), saying it that assumes the inferiority of the Tribal suggested additions because they are not substitutes BIA’s judgment for the forum, congressional intent would be necessary to implement ICWA’s transfer courts’ judgment, and denies courts the undermined. In keeping with provision, which already requires ability to consider every relevant aspect congressional intent, the Department transfer except in specified of an individual child’s case. One has imposed certain limits on what the circumstances. commenter stated that it limits the court may consider in determining Comment: A few commenters ‘‘good cause’’ analysis to nothing more ‘‘good cause’’ to promote consistency in suggested clarifying that a parent’s than a convenient forum analysis, and application of the Act and effectuate the objection to transfer must be in writing that it is beyond BIA’s authority to limit Act’s purposes. These limits focus on and the consequences of the objection the analysis in this way. Another those factors that there is evidence must be explained to the parent, to commenter noted that the proposed rule Congress did not wish to be considered, ensure an informed decision. could be interpreted to require a court or that have been shown to frustrate the Response: The final rule does not to transfer to Tribal court every case application of 25 U.S.C. 1911(b). State impose the suggested limitations on involving young Indian children where courts retain discretion to determine parental objections; however, State parental rights were terminated. ‘‘good cause,’’ so long as they do not

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base their good cause finding on one or by appellate courts in dozens of states that the case was at an advanced stage, more of these prohibited considerations. to interpret ‘‘good cause’’ under even though the Tribe did not learn Comment: A few commenters noted advanced stage principles; about the case until that stage. that the 1979 Guidelines identified what • State courts have overwhelmingly Response: While the 1979 guidelines State courts could consider in agreed good cause may exist if the explicitly allowed consideration of determining whether good cause exists, proceeding is at an advanced stage, but whether the case was at an advanced whereas the regulations now identified merely disagreed regarding what is stage as good cause to deny transfer, the what a State court may not consider, ‘‘advanced stage,’’ so the rule will final rule prohibits reliance on the leaving open the question of what increase litigation and delays in case advanced stage of the proceeding in would qualify as good cause. Several resolution; circumstances where the Indian parent, commenters stated that the rule could • It was not Congress’s intent to custodian, or Tribe did not receive be strengthened by providing a list of authorize late transfers and notice until the proceeding was at an examples of what good cause to deny congressional intent has not changed; advanced stage. The Department is transfer may resemble. Commenters • Congress could have expressly including this requirement to address disagreed on whether the list of allowed transfer at any point in the circumstances in which denying examples should be non-exhaustive (to proceeding in section 1911(b), as it did transfer is unfair, and undermines allow for situations not contemplated in for intervention in section 1911(c), but ICWA’s goals. Specifically, as pointed the examples) or exhaustive. A few it did not; out by a commenter, there have been commenters suggested that not stating • Late transfers are more disruptive situations where a parent, Indian what may constitute good cause may than late interventions, because a custodian, or the child’s Tribe did not expand courts’ ability to create good transfer may require retrying the entire receive timely notice, and then seeks to cause. case whereas problems resulting from a transfer the proceeding shortly after Response: The regulations take the late intervention are primarily those of receiving notice, but the State court approach of listing what courts must not the intervener; denies the petition to transfer based on consider, for the reasons listed above. • If courts are precluded from the case being at an ‘‘advanced stage.’’ See FR § 23.118. ICWA’s legislative considering the ‘‘advanced stage’’ they The final rule ensures that parents, history indicates the good cause should at least be able to consider as custodians, and Tribes who were provision was intended to permit a State good cause any ‘‘unjustifiable delay’’ in disadvantaged by noncompliance with court to apply a modified (i.e., limited, requesting transfer; otherwise, the rule ICWA’s notice provisions may still have narrow) version of the forum non incentivizes delay until the outcome in a meaningful opportunity to seek conveniens analysis. H.R. Rep. No. 95– the original proceeding becomes clear. transfer. This provision should also 1386, at 21. The Department believes Several commenters supported serve as an incentive for States to that it is most consistent with restricting State courts from considering provide the required notice promptly. congressional intent, and will best serve whether a case is at an ‘‘advanced stage’’ See FR § 23.117(c). the purposes of ICWA, if State courts as a ‘‘good cause’’ basis to deny transfer. While ICWA does not establish a time retain limited discretion to determine Among the reasons stated for this limit on the opportunity to transfer or what constitutes good cause to deny support were the following: expressly allow for transfer at any point transfer. Reliance on the factors • ICWA does not specify any time in the proceeding, it does expressly identified in the rule, however, would limits on transferring to Tribal court; allow for intervention at any point in • be inconsistent with the purposes of The 1979 Guidelines’ provision the proceeding. One of the rights of an ICWA, and thus is not permitted. allowing consideration of the ‘‘advanced intervenor is to seek transfer of the Comment: Several commenters stage of the proceedings’’ as good cause proceeding. To effectuate rights to opposed removing ‘‘advanced stage’’ as to deny transfer caused confusion notice in section 1912(a) and rights to a ‘‘good cause’’ basis to deny transfer. among courts and resulted in disparate intervene in section 1911(c), State Among the reasons commenters stated interpretations because there is no courts should allow a request for for this opposition were the following: consistent understanding of ‘‘advanced transfer within a reasonable time after • The rule radically departs from the stage’’ across the States (e.g., one court intervention. prior guidelines, which explicitly held just over 2 months into a The final rule also clarifies that allowed consideration of whether the proceeding was ‘‘advanced stage’’); ‘‘advanced stage’’ refers to the proceeding was at an advanced stage; • Each of the four ICWA-defined proceeding, rather than the case as a • State courts should be able to proceedings should be reviewed anew, whole. Each individual proceeding will consider whether the proceeding is at an so that a petition to transfer filed late in culminate in an order, so ‘‘advanced advanced stage for good policy a foster-care proceeding would be stage’’ is a measurement of the stage reasons—to prevent forum shopping considered early for an adoptive within each proceeding. This allows (i.e., waiting until the ruling becomes placement and State proceedings do not Tribes to wait until the termination-of- clear and then, if it is unfavorable, perfectly map to the ICWA-defined parental-rights proceeding to request a seeking transfer) and to prevent harm to proceedings; transfer to Tribal court, because the the child (from disruption in placement • There are a myriad of reasons a parents, Indian custodian, and Tribe and delay in permanency); Tribe may wait to transfer a case to their must receive notice of each proceeding. • Timeliness is a proven weapon own jurisdiction, including allowing The Department recognizes that it is against disruption caused by negligence sufficient time to do the work necessary often at the termination-of-parental- or obstructionist tactics; to determine whether to transfer, or rights stage that factors that may have • Not allowing consideration of waiting until the termination of parental dissuaded a Tribe from taking an active whether the case is at an advanced stage rights stage because the Tribe works role in the case (such as the State’s violates the Indian child’s right to with the State or monitors the case efforts to reunite a child with her nearby permanency; before that time to promote family parent) change in ways that may • The rule is inconsistent with ASFA- reunification. warrant reconsidering transfer of the mandated permanency deadlines, which One commenter shared a story of a case. See, e.g., Zylena R., 825 N.W.2d at have been the basis of policy established State court denying transfer on the basis 183 (Neb. 2013).

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Comment: A State commenter stated equal protection rights and is transfer ‘‘could’’ result in a change in that litigation over whether a State court detrimental to the child; placement, rather than ‘‘would’’ result may consider, in its good cause • Best practices in child-welfare because it can be the mere ‘‘fear’’ by a determination, whether the proceeding proceedings direct that children should State-court judge of the potential change is at an ‘‘advanced stage’’ is causing have minimal changes in placement. that leads to denial of transfer. delays, which are, in turn, delaying Response: The final rule provides that Response: The final rule incorporates permanency for children and putting the State court must not consider, in its this suggestion because the State court the State in a position of not being able decision as to whether there is good will not know whether, once the to meet required permanency timelines. cause to deny transfer to the Tribal proceeding is transferred, the Tribal Response: The final rule aims to court, whether the Tribal court could court would decide to change the reduce litigation over determinations as change the child’s placement. This is an placement. to whether a proceeding is at an inappropriate consideration because it Comment: A commenter noted that ‘‘advanced stage’’ by establishing clearer would presume a decision that the the issue in deciding whether there is standards for when this factor may not Tribal court has not yet made. See FR good cause to deny transfer is not what be considered. Expeditious transfer does § 23.118(c)(3). A transfer to Tribal court is best for the child, but who should be not delay permanency for a child. does not automatically mean a change making decisions about what is best for Comment: A few commenters in placement; the Tribal court will the child. This commenter notes that a opposed not including the child’s consider each case on and presumption by State courts that the contacts with the reservation as a basis individualized basis and determine Tribe cannot or will not act in a child’s for good cause to deny transfer, noting what is best for that child. Some best interest was one of the reasons that the 1979 Guidelines included this commenters erroneously assume that ICWA was initially passed. factor and that transferring a child’s case Tribal courts and social services Response: The Department agrees that to a court with which the child has no agencies do not follow ‘‘best practices in ruling on a transfer motion should not connection does not serve the child child-welfare proceedings’’ regarding involve predicting how Tribal courts well. Another commenter supported changes in a child’s placement. may rule in a particular case. removing this provision noting that The Department also declines to Comment: Several commenters stated young children would not have accept the comments recommending their concern that the proposed rule evidence of involvement with a Tribe at that State courts be permitted to removes from State-court judges the that age anyway. consider whether transfer could result ability to consider the child’s best Response: As noted above, the final in change of placement because the interests in determining whether a case rule establishes that the court must not Department has concluded it is not should be transferred. One commenter consider a child’s cultural connections appropriate to grant or deny transfer stated that this is an unwarranted with the Tribe or reservation in based on predictions of how a particular expansion of Tribal authority over determining whether there is good cause Tribal court might rule in the case. See children not domiciled in reservations to deny transfer. State courts are ill- e.g., Piper Aircraft Co. v. Reyno, 454 and has the potential to cause grave equipped to make this assessment, and U.S. 235,261 (1981) (holding that the harm to children. young children are unlikely to have had ‘‘Court of Appeals erred in holding that In contrast, several other commenters the opportunity to develop such the possibility of an unfavorable change suggested the rule should explicitly connections. in law bars dismissal on the ground of prohibit State courts from applying the Comment: Several commenters forum non conveniens’’). traditional ‘‘best interests of the child’’ opposed restricting State courts from For similar reasons, the Department analysis in determining whether there is considering whether there will be a does not find the equal protection good cause to deny transfer to the Tribe change in placement, for the following concerns raised by commenters because: (1) This prohibition was reasons: compelling. The transfer decision included in the Guidelines; (2) ICWA • Restricting courts from considering should focus on which jurisdiction is establishes the placement preferences as whether there will be a change in best-positioned to make decisions in the being in the child’s best interest; and (3) placement effectively restricts the court child’s custody proceeding. ICWA—and leaving best interests to be argued from considering the impact on the the Department’s experience— undermines ICWA’s goal to overcome child of the transfer; establishes that Tribal courts are bias and determinations based on lack • Legally, it is impossible to separate presumptively well-positioned to of knowledge of Tribes and Indian jurisdiction and custody, because once address the welfare of Tribal children. children. A few commenters stated that jurisdiction is transferred to a Tribe, State courts retain limited discretion a best interests inquiry is inconsistent only the Tribe has jurisdiction over the under the statute but the choice between with the presumption of Tribal child’s custody; two court systems does not raise equal jurisdiction and recognition of Tribal • Transferring jurisdiction to a Tribe protection concerns. See, e.g. United courts as fully competent to protect an but retaining the child’s placement States v. Antelope, 430 U.S. 641 (1977). Indian child’s welfare. Others stated raises legal and practical questions Finally, the Department does not find that the regulations establish that about whether the court has jurisdiction these concerns compelling because even transfer is presumptively in the child’s over caregivers, to monitor the care if a child-custody proceeding remains in best interests. provided to the child, and to determine State court, the State court must still A commenter suggested inserting a if the child is subject to new abuse or follow ICWA’s placement preferences ‘‘best interests’’ analysis that includes neglect; (or find good cause to deviate from consideration of the child’s strong • Many courts have held that the them). If there is an extended family or interest in having a connection to the child’s best interests may be considered Tribal placement that the parties believe child’s Tribe, learning the child’s in determining whether good cause to that the Tribal court is likely to consider culture, being part of the Tribal deny transfer exists; and perhaps choose, the State court community, and developing a positive • Not allowing the court to consider must consider that placement as well. Indian identity. This commenter also whether a transfer would result in a Comment: One commenter suggested requested adding language from the placement change violates the child’s prohibiting consideration of whether 1979 Guidelines stating that certain

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facts may indicate transfer is not in the the rights of certain individuals to raise response and that Tribal court best interests of the child (e.g., if the such an objection. scheduling may occur less frequently. child is part of a sibling group with non- Comment: A few commenters Response: The final rule deletes the Indian children). suggested additional factors that a State proposed provision allowing the Tribe Response: The final rule does not court should not be permitted to 20 days to decide to accept transfer, and include a ‘‘best interests’’ consideration, consider, including the distance instead specifies that the State court but does provide other guidance. See between the State court and any Tribal may request a timely response form the Zylena R., 825 N.W.2d at 183 (Neb. or BIA social service or judicial systems. Tribe. The Tribe has a statutory right to 2013) (best interests of child should not Response: The final rule does not add decline (or accept) jurisdiction, without be a factor in determining whether there the suggested factor to the list of items a statutorily mandated timeline. The is good cause to deny a transfer motion); a State court may not consider in Department, however, believes that In re A.B., 663 N.W.2d 625, 634 (N.D. determining good cause to deny Tribal courts will respond in a timely 2003) (same, collecting cases). In transfer. If a State court considers manner, recognizing the need for general, the transfer determination distance to the Tribal court, it must also expediently addressing child-welfare weigh any available accommodations should focus on what jurisdiction is best issues. positioned to hear the case. The BIA that may address the potential hardships caused by the distance. Comment: A few commenters stated guidelines also provide additional that the rule should require the State guidance regarding what factors are Comment: A commenter noted that some of PR § 23.117 reflects what is in child-welfare agency to provide a copy appropriate to consider in analyzing of the agency file and additional listed whether there is good cause to deny current California law, particularly that a court may not consider the information to the Tribe at no charge transfer. because such documentation is essential Comment: A few commenters socioeconomic conditions and perceived inadequacy of Tribal systems, to appropriate care decisions and are suggested the rule should establish a often not provided to Tribes upon ‘‘clear and convincing’’ standard of but asserts that PR § 23.117(c) and (d) would unduly restrict the State judge’s transfer. Another commenter stated that evidence for a showing of good cause to the rule should require the records to be deny transfer. The commenters stated discretion by not allowing the judge to consider exceptional circumstances sent to the Tribe at the time the Tribe that this standard would be appropriate is requested to make a decision to to protect the Tribe’s presumptive relating to the Indian child’s welfare. Response: The regulation’s limitations accept or decline a transfer, so it can jurisdiction and promote consistency by on what may be considered in the ‘‘good make an informed decision. preventing State courts from adopting a cause’’ determination do not limit State Response: The final rule combines the lesser standard. A few commenters judges from considering some provisions in the proposed rule stated that there should be no burden of exceptional circumstance as the basis of regarding transmission of information proof specified for good cause to deny good cause. However, the ‘‘good cause’’ from the State court to the Tribal court transfer. determination whether to deny transfer upon transfer, and provides that the Response: The statute does not to Tribal court should address which State court should expeditiously establish the standard of evidence for court will adjudicate the child-custody provide to the Tribal court all records the determination of whether there is proceeding, not the anticipated outcome regarding the proceeding. See FR good cause to transfer a proceeding to of that proceeding. § 23.119. In addition, State agencies Tribal court. There is, however, a strong should share records with Tribal 4. What Happens When Petition for trend in State courts to apply a clear and agencies as they would other Transfer Is Made convincing standard of evidence. See, governmental jurisdictions, presumably e.g., In re M.E.M., 635 P.2d 1313, 1317 Comment: A few commenters noted at no charge, under the ICWA provision (Mont. 1981); In re Armell, 550 N.E.2d that ICWA does not require the Tribe to requiring mutual full faith and credit be 1060, 1064 (Ill. App. Ct. 1990); In re affirmatively accept jurisdiction before given to each jurisdiction’s records. See S.W., 41 P.3d 1003, 1013 (Okla. Civ. transfer. One of these commenters 25 U.S.C. 1911(d). App. 2002); In re T.I., 707 N.W.2d 826, suggested revising PR § 23.118(a) to 833–34 (S.D. 2005); Thompson v. Dep’t. Comment: A commenter stated that mirror the statutory provision at section the rule should instruct the State court of Family Servs, 747 S.E.2d 838 (2013); 1911(b) stating that the State court People in Interest of J.L.P., 870 P.2d to follow procedures for transfer as ‘‘shall transfer . . . subject to dictated by the Tribe. 1252 (Colo. 1994); Matter of Adoption of declination by the tribal court.’’ T.R.M., 525 N.E.2d 298 (Ind. 1988); In Response: The rule requires prompt Response: Once the State court re A.P., 961 P.2d 706 (1998). The notification to the Tribal court of the determines that it must transfer to Tribal Department declines to establish a transfer petition, and permits a court to court, the State court and Tribal court Federal standard of proof at this time, request a response regarding whether should communicate to agree to but notes the strong State court the Tribal court wishes to decline the procedures for the transfer to ensure approach to this issue is compelling. transfer. FR § 23.116. As a practical that the transfer of the proceeding States are already applying this standard matter, the State and Tribal courts must minimizes disruptions to the child and and the Department will consider this communicate regarding whether the to services provided to the family. issue for future action. Tribal court will accept jurisdiction in Comment: One Tribal commenter Comment: A few commenters order to facilitate a smooth transfer and stated that the rule should require the suggested that the rule should allow protect the Indian child and minimize State court to send notice of request to only States, and not foster or putative disruption of services to the family. See transfer to the designated ICWA office adoptive parents, to advance a claim FR § 23.119 rather than the Tribal court because that there is good cause to deny transfer. Comment: A few commenters there may be multiple Tribal courts. Response: Neither the statute nor the opposed the proposed provision Response: As discussed above, if the rule limit who may advance a claim that allowing the Tribe 20 days to decide to State court does not have contact there is good cause to deny transfer. accept transfer, noting that ICWA does information for the Tribal court, it State laws or rules of practice may limit not mandate a timeframe for Tribal should contact the Tribe’s ICWA officer.

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K. Adjudication Comment: One commenter stated the custody is likely to result in serious rule should clarify that Tribes have a physical damage or harm to the child 1. Access to Reports and Records right to both discovery and disclosure of uses the phrase ‘‘serious physical ICWA and these rules require that every document, and should not be damage or harm to the child’’ while the access to certain records be provided to required to pay for photocopying of statute, at section 1912(e), uses ‘‘serious certain parties. For example, ICWA documents that other parties receive. emotional or physical damage to the provides that each party to an ICWA Response: State agencies must share child.’’ Commenters opposed the foster-care-placement or termination-of- records with Tribal agencies that are omission of ‘‘emotional’’ as beyond the parental-rights proceeding has the right parties to child-custody cases as they authority granted by the statute. Some to examine all reports or other would other parties and governmental assumed this was an inadvertent documents filed with the court upon entities. The rule does not, however, omission, while others interpreted this which any decision with respect to such address payment of such charges, as the as meaning that foster care may not be action may be based. 25 U.S.C. 1912(c); issue is not addressed in the statute. ordered even where parents are FR § 23.134. In order to comport with Comment: One commenter requested inflicting serious emotional harm on the due process requirements, the final rule the rule require States to allow Tribes at Indian child. also extends this right to parties to least three business days to review Response: The proposed rule emergency proceedings. FR § 23.134. records. mistakenly omitted the term Tribes that are parties to such Response: The statute does not ‘‘emotional’’ in PR § 23.121(a) and proceedings are entitled to receipt of the require States to provide Tribes with a instead used the term ‘‘harm.’’ The final documents upon which a decision may certain time period for reviewing rule more closely tracks the statutory be based. In addition, the notice records, but all parties should be language, using the phrase ‘‘serious provisions of FR § 23.111(d) require that provided sufficient time to review the emotional or physical damage to the Tribes be provided the document by records to allow for meaningful child.’’ See FR § 23.121(a). participation in the proceeding. which the child-custody proceeding was b. Standard of Evidence for Termination initiated (as well as other information), Comment: One commenter opposed and FR § 23.141 requires that States PR § 23.119(b) (the court’s decisions One commenter suggested changing make available to an Indian child’s must be based only upon documents in ‘‘continued custody of the child by the Tribe the placement records for that the record), because it suggests that parent or Indian custodian’’ in PR child’s child-welfare proceedings. agreed orders entered into between the § 23.121(b) to ‘‘custody of the child by Comment: A few commenters parties could not be off the record or ex either parent or Indian custodian.’’ Response: The final rule retains the suggested clarifying that the child’s parte, despite local practice and State proposed language stating ‘‘continued Tribe has the right to timely receipt of statutory authority, and could overload custody of the child by the parent or documents filed with the court or upon State courts by requiring all cases to be Indian custodian’’ because this is the which a decision may be based. One heard on the record. statutory language. See 25 U.S.C. stated that such access is necessary for Response: ICWA requires clear and 1912(f), FR § 23.121(b). the Tribe to determine whether to convincing evidence for foster-care intervene. Two Tribes stated that States placements and evidence beyond a c. Causal Relationship refuse them access to information on the reasonable doubt for termination of parental rights, each of which would Comment: One commenter noted that basis of confidentiality. PR § 23.121(c) requires a showing of a Response: States cannot refuse to necessarily require documentation in the record. This does not foreclose relationship between particular provide an Indian child’s Tribe with conditions but it does not say in the access to information about that child’s agreed orders, but the court must still make the statutorily required findings. second item how these conditions proceedings. ICWA expressly provides relate. The commenter suggested for Tribal access to certain records, and 2. Standard of Evidence for Foster-Care clarifying in both (c) and (d), that the makes no exception for confidentiality Placement and Termination actions are directly putting the children concerns (which presumably are present in danger. A commenter noted that the in all child-custody proceedings). Tribes a. Standard of Evidence for Foster-Care Placement word ‘‘between’’ is confusing in PR are sovereign entities that have § 23.121(c). concurrent jurisdiction over child- Comment: Several commenters Response: The final rule addresses the custody proceedings, and they should supported PR § 23.121(a), establishing commenters’ concerns by revising the have the ability to review documents the standard of evidence applicable to language to clarify that there must be a relevant to those proceedings. Further, foster-care placement. A few causal relationship between the the Indian Child Protection and Family commenters suggested strengthening PR particular conditions in the home and Violence Protection Act addresses this § 23.121(a) and (b) by changing ‘‘may the risk of serious emotional or physical concern, providing that State agencies not’’ to ‘‘must not’’ or ‘‘shall not’’ to damage to the child. See FR § 23.121(c). that investigate and treat incidents of make it more clearly mandatory. One Comment: A commenter stated that child abuse should provide information commenter stated that while ‘‘may not’’ the requirement for a causal relationship and records to Tribal agencies that need is the phrase used by the statute, it does should apply to both clear and to know the information in performance not depart from the intent of ICWA to convincing evidence for foster-care of their duties to the same extent they use ‘‘shall not.’’ placement and beyond a reasonable would provide the information and Response: The final rule changes doubt for termination of parental rights records to Federal agencies. 25 U.S.C. ‘‘may not’’ to ‘‘must not’’ as requested because the statute establishes these 3205. Therefore, confidentiality to clarify that the standard of evidence evidentiary standards in mirroring generally is not a valid basis to withhold is mandatory. provisions. information and records to the Indian Comment: Several commenters Response: The final rule requires the child’s Tribe. The rule does not pointed out that PR § 23.121(a), causal relationship for both clear and incorporate this provision because it is establishing that the court may not order convincing evidence for foster-care not unique to ICWA implementation. foster-care placement unless continued placement and beyond a reasonable

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doubt for termination of parental rights. identified in FR § 23.121(c), as the sole that the qualified expert witness should See FR § 23.121(c). basis for determining that clear and have particular expertise. Congress Comment: A few commenters convincing evidence or evidence noted that ‘‘[t]he phrase ‘qualified suggested that ‘‘particular conditions in beyond a reasonable doubt support a expert witnesses’ is meant to apply to the home’’ should be ‘‘particular conclusion that continued custody is expertise beyond the normal social conditions in the home listed in the likely to result in serious emotional or worker qualifications.’’ H.R Rep. No. petition’’ because the petition should physical damage to the child. See FR 95–1386, at 22. In addition, a prior include all the allegations. § 23.121(d). The intention behind this version of the legislation called for Response: The final rule does not add provision is to address the types of testimony by ‘‘qualified professional that the conditions must be listed in the situations identified in the statute’s witnesses’’ or a ‘‘qualified physician.’’ petition because evidentiary legislative history where States remove See S. Rep. No. 95–597, at 21. requirements that are not unique to Indian children at higher rates than they The final rule requires that the ICWA govern what allegations must be remove non-Indian children based on qualified expert witness must be included in the petition. See FR subjective assessments of these factors. qualified to testify regarding whether § 23.121(c). To address the commenters’ concerns the continued custody of the child by Comment: A commenter suggested that this provision may prevent State the parent or Indian custodian is likely replacing ‘‘conditions in the home’’ courts from protecting Indian children, to result in serious emotional or with ‘‘facts’’ to prevent exclusion of the final rule addresses this comment by physical damage to the child. FR facts such as a parent’s propensity to stating that a court may not consider § 23.122(a). This requirement flows from abuse the child, as opposed to the living any one of these factors unless there is the language of the statute requiring a conditions. a causal relationship between the factor determination, supported by evidence Response: The final rule retains the and the damage to the child. In other . . ., including testimony of qualified phrase ‘‘conditions in the home’’ words, if one of these factors is causing expert witnesses, that the continued because this phrase generally indicates the likelihood of serious emotional or custody of the child by the parent or all conditions of the child’s home life physical harm to the Indian child, the Indian custodian is likely to result in rather than just the physical location. court may rely on the factor. serious emotional or physical damage to This phrase was also used in the 1979 Comment: One commenter suggested the child. 25 U.S.C. 1912(e), (f). Guidelines. See FR § 23.121(c). defining or giving examples of In addition, the qualified expert d. Single Factor ‘‘nonconforming social behavior’’ in the witness should have specific knowledge provision stating that evidence of of the prevailing social and cultural Comment: Several commenters nonconforming behavior by itself is not standards of the Indian child’s Tribe. FR expressed concern regarding PR evidence that continued custody is § 23.122(a). In passing ICWA, Congress § 23.121(d), which states that one of the likely to result in serious emotional or wanted to make sure that Indian child- listed factors may not, of itself, meet the physical damage to the child. welfare determinations are not based on burden of evidence. A few stated that Response: The final rule does not ‘‘a white, middle-class standard which, the proposed rule presumes States define the term, but the Department in many cases, forecloses placement routinely remove children solely on the notes that ‘‘nonconforming social with [an] Indian family.’’ Holyfield, 490 basis of poverty, isolation, single behavior’’ includes behaviors that do U.S. at 36 (citing H.R. Rep. No. 95–1386, parenthood, custodian age, crowded or not comply with society’s norms, such at 24). Congress recognized that States inadequate housing, substance abuse, or as dressing in a manner that others have failed to recognize the essential nonconforming social behavior, when in perceive as strange, an unusual or Tribal relations of Indian people and the fact they do not. One commenter disruptive manner of speech, or cultural and social standards prevailing expressed concern that PR § 23.121(d) is discomfort in or avoidance of social in Indian communities and families. See dangerous, because one could argue that situations. See FR § 23.121(d). 25 U.S.C. 1901(5). Accordingly, expert where both parents are abusing and Comment: A commenter stated that testimony presented to State courts producing drugs, the evidence shows the list of factors in PR § 23.121(d) should reflect and be informed by those only the existence of inadequate should not be sufficient for evidence cultural and social standards. This housing and substance abuse, which beyond a reasonable doubt that ensures that relevant cultural cannot meet the burden of evidence. continued custody is likely to result in information is provided to the court and Another commenter noted that serious emotional or physical damage to that the expert testimony is substance abuse is a significant the child, in addition to not being contextualized within the Tribe’s social contributing factor to child abuse and sufficient for clear and convincing and cultural standards. Thus, the neglect, and asserted that excluding evidence that continued custody is Department believes that the question of substance abuse from evidence fails to likely to result in serious emotional or whether the continued custody of the protect the child. Another commenter physical damage to the child. child by the parent or Indian custodian stated that Congress never suggested Response: The final rule adds is likely to result in serious emotional alcohol or substance abuse that harms ‘‘beyond a reasonable doubt’’ as or physical damage to the child is one Indian children was not a sufficient requested. See FR § 23.121(d). that should be examined in the context reason for removing Indian children. A of the prevailing cultural and social commenter stated that not allowing a 3. Qualified Expert Witness standards of the Indian child’s Tribe. judge to consider substance abuse or The Act requires the testimony of The final rule does not, however, nonconforming social behavior takes qualified expert witnesses for foster-care strictly limit who may serve as a away the court’s power to protect Indian placement and for adoptive placements. qualified expert witness to only those children. 25 U.S.C. 1912(e), (f). The final rule individuals who have particular Tribal Response: The final rule does not provides the Department’s social and cultural knowledge. FR prohibit State courts from considering interpretation of this requirement. See § 23.122(a). The Department recognizes the factors. Instead, the final rule FR § 23.122. that there may be certain circumstances prohibits relying on any one of these The legislative history of the qualified where a qualified expert witness need factors, absent the causal connection expert witness provisions emphasizes not have specific knowledge of the

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prevailing social and cultural standards evidence. A few other commenters witness should have an understanding of the Indian child’s Tribe in order to stated that the rule conflicts with of the child’s Tribe’s cultural and social meet the statutory standard. For established rules of evidence because standards. However, the final rule still example, a leading expert on issues questions of bias and prejudice go to the provides State courts with discretion to regarding sexual abuse of children may weight, not the admissibility, of determine what qualifications are not need to know about specific Tribal evidence. These commenters note that necessary in any particular case. State social and cultural standards in order to concerns as to bias and prejudice can be law may also provide standards for testify as a qualified expert witness addressed through impeachment in qualified expert witnesses that are more regarding whether return of a child to a cross-examination. protective of the rights of the Indian parent who has a history of sexually Response: The Act is ambiguous child and parents. abusing the child is likely to result in regarding who is a ‘‘qualified expert Comment: One commenter noted that serious emotional or physical damage to witnesses.’’ Thus, as discussed above, the requirement for specific knowledge the child. Thus, while a qualified expert the final rule provides the Department’s of the Tribe applies even if the child has witness should normally be required to interpretation of this requirement. See never been involved in the Tribe’s have knowledge of Tribal social and FR § 23.122. Providing State courts with customs or culture. A commenter cultural standards, that may not be this regulatory language will promote asserted it would be unfair to a child necessary if such knowledge is plainly uniformity of the application of ICWA. that has no connection to the Tribe’s irrelevant to the particular As discussed above, the Department customs or culture to require a Tribal circumstances at issue in the emphasizes that qualified expert expert witness. One commenter stated proceeding. A more stringent standard witnesses must have particular relevant that it does not take an expert with may, of course, be set by State law. expertise and should have knowledge of specific knowledge of Indian culture to Comment: Several commenters the prevailing social and cultural provide helpful information to the supported the proposed rule’s standards of the Indian child’s Tribe. court, so long as the expert has requirement in PR § 23.122 for the These are not issues of bias or prejudice; substantial education and experience qualified expert witness to have rather, they are issues of the knowledge and testifies on matters not implicating knowledge of the prevailing social and that the expert should have in order to cultural bias. This commenter stated cultural standards and childrearing offer her testimony. The final rule still that the requirement for an expert with practices within the child’s Tribe and provides State courts with discretion to special knowledge of Indian life is prioritizing use of experts who are determine what qualifications are unreasonable when an agency seeks members of the child’s Tribe and necessary in any particular case. action on any ground not pertaining to recognized by the Tribal community as Comment: A few commenters noted the child’s heritage. A few commenters knowledgeable in Tribal customs. A few that ICWA does not require the qualified pointed to case law holding that when commenters stated that this ensures expert witness have specific knowledge cultural bias is not clearly implicated, cultural information is provided to the of the Tribe’s culture or customs. A the qualified expert witness need not court and avoids increasing use of non- commenter stated that Congress said the have specialized knowledge of Indian Indian professionals without experience phrase was meant to apply to expertise culture. or knowledge in Indian families. A few beyond ‘‘normal social worker Response: As discussed above, the commenters noted that expert witness qualifications’’ but did not impose final rule states that a qualified expert testimony has been provided by those additional requirements for knowledge witness should have an understanding without any knowledge of Indian family of the Tribe’s culture and customs. This of the child’s Tribe’s cultural and social customs or based on information commenter also noted that numerous standards. The child’s involvement with gleaned from the Tribe’s Web site; these courts have ruled that, if cultural bias is Tribal customs and culture is not commenters supported the proposed not implicated in the testimony or relevant to an inquiry that focuses on rule for addressing this issue. A proceeding, then the expert witness is the ability of the parent to maintain commenter supported the definition of not required to have experience with or custody of their child. qualified expert witness in PR § 23.122 knowledge of the Indian culture. A few There may be limited circumstances as consistent with the way the term has commenters pointed to case law holding where this knowledge is plainly been defined in various State statutes that specialized knowledge of Indian irrelevant to the question whether the implementing ICWA, in various Tribal- culture is not necessary for a person to continued custody of the child by the State agreements, and in accordance be qualified as an expert in an ICWA parent or Indian custodian is likely to with ICWA’s intent. case, and State law controls who is result in serious emotional or physical Several other commenters stated that recognized as an expert. damage to the child, and the final rule the proposed provisions addressing who A few commenters pointed out the allows for this. The Department may serve as a qualified expert witness purpose of the requirement for qualified disagrees, however, with the are beyond the Department’s authority. expert witness testimony and stated that commenters’ suggestion that State Other commenters stated that the Congress intended to prevent removal of courts or agencies are well-positioned to Department is within its purview to Indian children due to cultural assess when cultural biases or lack of define who may be considered as a misunderstandings, poverty, or different knowledge is, or is not, implicated. qualified expert witness in ICWA cases standards of living. Another stated that ICWA was enacted in recognition of the because the statute requires qualified Congress was trying to address social fact that the opposite is generally true. expert witnesses but does not define the workers improperly basing findings of Indeed, as other commenters have term. neglect and abandonment on factors pointed out, some theories, such as Several commenters objected to PR such as the care of Indian children by certain bonding and attachment § 23.122, stating that it commandeers extended family members, Indian theories, presented by experts in foster- State courts by telling them who may parents’ permissive discipline, and care, termination-of-parental-rights, and serve as expert witnesses and that, unequal considerations of alcohol adoption proceedings are based on instead, State-court judges should abuse. Western or Euro-American cultural determine what expert testimony is Response: As discussed above, the norms and may have little application credible and reliable based on rules of final rule states that a qualified expert outside that context. See, e.g.,

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Comments of Casey Family Programs, at can be a challenge. These commenters opinion, if it is known that the Tribe has pp 13–17. were concerned that the difficulties in an opposing opinion. Comment: Several commenters securing qualified expert witnesses A few commenters opposed listing a opposed restricting expert testimony could delay permanency decisions. member of the child’s Tribe recognized since it could prevent courts from Suggested solutions to this issue as knowledgeable in Tribal customs or receiving relevant information. included: childrearing as the first preference Commenters also stated that limitations • Allowing regional experts because choosing a layperson over a on expert evidence would cause harm (particularly in Alaska, where it may not professional would be choosing that and prevent positive outcomes for many be possible to find experts in each Tribe’s cultural opinion over an children. A commenter noted that the unique village or Tribe that can be educated person who can provide proposed rule’s requirements available at hundreds of hearings held evidence-based testimony. improperly allow the Tribe to dictate each year); A few commenters opposed the who the State can call as an expert • Providing guidance for finding priority given to professionals with witness in their own case-in-chief. This witnesses from out-of-State Tribes; substantial experience and education in commenter stated that the Tribe as a • Applying expert witness his or her specialty being below the party may call their own witnesses and requirements only when the child is priority of Tribal members of the child’s cross-examine the State’s expert and domiciled on or residing on the or another Tribe, and laypersons with should have the responsibility to reservation because otherwise it is knowledge of the Tribe’s cultural and present evidence. A few commenters difficult to locate an impartial qualified childrearing practices. These noted that the regulations do not limit expert witness with specific knowledge commenters stated that the priorities the number of expert witnesses at a of the Tribe’s culture and customs; essentially eliminate the input of hearing but ensures the court has all the • Requiring Tribes to respond to licensed child-welfare experts, and information it needs to make culturally requests to provide an expert, or to could jeopardize the safety and informed decisions. These commenters relieve the agency of the obligation to wellbeing of the children. state that the proposed rule requires the identify a Tribal expert if the Tribe fails One commenter stated that the fourth State to find someone who agrees with to respond; preference should be removed because a the foster-care placement or termination • Requiring BIA provide a list of non-Native anthropologist will likely of parental rights after reviewing the qualified expert witnesses. not understand the culture and case from the perspective of the child’s Response: The Department traditions of Tribes. This commenter culture and community, to ensure that encourages States to work with Tribes to recommends instead adding language the cultural norms of the child’s Tribe obtain a qualified expert witness. In similar to three, saying that a layperson are considered. Other commenters some instances, it may be appropriate to who is recognized by the child’s Tribe stated that the proposed rule restricts accept an expert with knowledge of the in having substantial experience. testimony from psychological experts in customs and standards of closely related A commenter opposed ranking at all trauma, attachment, developmental because the trier of fact should psychology, etc., unless they also have Tribes. Parties may also contact the BIA determine what weight to give to knowledge of the specific Tribe’s for assistance. See 25 CFR 23.81. testimony, and by ranking, it implies the customs. Several commenters requested Comment: A commenter noted that clarification that these requirements do the evidentiary issue before the court is higher ranked expert would be more not preclude State courts from hearing whether the child is at risk of serious reliable or credible. testimony from other expert witnesses emotional or physical damage, and that Response: The final rule does not in addition to the expert on the Tribe’s the new definition does not require the include a preference list of qualified culture and customs as they pertain to expert witness to have any knowledge, expert witnesses. Instead it requires that childrearing. A few commenters noted education, or qualification on that issue. the qualified expert witnesses be able to that a primary policy underlying ICWA This commenter noted that knowledge testify regarding whether the child’s was to protect the best interest of Indian of the Tribe’s culture and customs can continued custody by the parent or children, but the proposed rule provides inform an expert’s opinion but that is Indian custodian is likely to result in no qualification for experts who can secondary to the expert’s ability to serious emotional or physical damage to speak to the best interests of the child. address the main issue. the child and that the qualified expert These commenters state that any such Response: The final rule states that witnesses should be qualified to testify expert should be given priority the testimony of at least one qualified as to the prevailing social and cultural regardless of whether the expert is from expert witness must address the issue of standards of the Indian child’s Tribe. a Tribe. whether continued custody of the child The final rule also allows a Tribe to Response: The rule does not restrict by the parent or Indian custodian is designate a person as being qualified to expert testimony. The court may accept likely to result in serious emotional or testify as to the prevailing social and expert testimony from any number of physical damage to the child. cultural standards of the Indian child’s witnesses, including from multiple Comment: A few commenters Tribe. qualified expert witnesses. The statute supported the preference list of Comment: A few commenters requires, however, that the proposed qualified expert witnesses. A few expressed concern that a witness in the foster-care placement or termination of commenters suggested redrafting PR proposed order of preference would be parental rights be supported by the § 23.122(b) to clarify that the biased, because a member of the Tribe testimony of qualified expert witnesses. presumption is in descending order, to would not oppose the Tribe’s position. Comment: Several commenters noted read ‘‘The [qualified expert witness] Response: The final rule does not the difficulty in obtaining expert shall be determined in the following require that the qualified expert witness witnesses with specific knowledge of order of preference.’’ One commenter be a citizen of the Tribe. The witness the Tribe’s culture and customs who are stated that the preference order is should be able to demonstrate willing to testify. One noted that, in important because in some counties, the knowledge of the prevailing social and California, due to the historical State worker is accepted as an expert cultural standards of the Indian child’s relocation policies, finding an expert witness to circumvent the Tribe’s Tribe or be designated by a Tribe as

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having such knowledge. See FR Comment: One commenter noted that articulated a clear Federal interest in § 23.122(a), (b). because the standard of evidence for protecting Indian children and the Comment: One commenter suggested foster-care placement and termination of survival of Tribes. State law varies in considering Native elders parental rights hinges on harm to the how these various interests are knowledgeable about ICWA and the child, the qualified expert should be considered and protected. family’s heritage, etc., as qualified someone familiar with the child, not ICWA balances these important and expert witnesses. just the Tribe. A commenter suggested sometimes competing considerations. It Response: Any potential qualified requiring the qualified expert witness to recognizes that Tribes have exclusive expert witness, including Native elders, make contact with the parents and make jurisdiction over child-custody would need to meet the requirements of an effort to view interactions between proceedings involving children FR § 23.122 to testify on whether the parents and child, and attempt to domiciled on the reservation, and the continued custody is likely to result in meet with extended family members right to seek transfer or intervene in serious emotional or physical damage to involved in the child’s life. Otherwise, foster-care or termination-of-parental the child. The court may allow experts the expert will rely on one-sided State rights proceedings involving off- to testify for other purposes as well. reports. reservation children. The final rule Comment: Several commenters Response: The commenter’s retains this balance, and makes clear suggested further improving the suggestions are recommended practices. that ICWA’s placement preferences regulation by providing that the Tribe apply to voluntary placements, but also L. Voluntary Proceedings will designate and authorize the expert permits departure from those witness. Several other commenters Certain ICWA requirements apply to preferences based on various factors, requested clarification that, while the voluntary proceedings. The statute including the request of one or both Tribe may assist in locating an expert, defines ‘‘child-custody proceeding’’ parents, if they attest that they have it is under no obligation to do and that broadly to include foster-care, reviewed the placement options, if any, the Tribe’s failure to do so does not preadoptive, and adoptive placements, that comply with the order of absolve the State of its obligation. A few without regard to whether those preference. FR § 23.132(c). This other commenters requested requiring placements are made with or without balances the importance of the the State to seek assistance from the the consent of the parent(s). 25 U.S.C. placement preferences with the rights of Tribe or the BIA agency if the Tribe is 1903(1). Similarly, termination-of- the parent. unable to be contacted. Another parental-rights proceedings fall within For clarity, the final rule indicates in commenter noted that the Tribe is often the statutory definition whether or not FR § 23.104 which provisions apply to the State’s opposing party, so it the termination is voluntary or voluntary proceedings. The final rule shouldn’t be required to seek assistance involuntary. Id. also provides specific standards for from the Tribe. The statute does not condition Tribal voluntary proceedings. In particular: Response: The final rule provides that court jurisdiction over Indian child- • Section 23.124(a) and (b) provide the court or any party may request the custody proceedings on whether that the minimum requirements for State assistance of the Indian child’s Tribe or proceeding is voluntary or involuntary. courts to determine whether the child is the BIA agency serving the Indian Rather, exclusive Tribal jurisdiction is an ‘‘Indian child’’ as defined by statute. child’s Tribe in locating persons recognized over any child-custody If there is reason to believe that the qualified to serve as expert witnesses. proceeding involving an Indian child child is an ‘‘Indian child,’’ but this This is not required. who resides or is domiciled within the cannot be confirmed based on the Comment: Several commenters reservation of the Tribe under 25 U.S.C. evidence before the State court, it must requested a new provision prohibiting 1911(a). See also generally Holyfield. ensure that the party seeking placement the qualified expert witness from being Transfer and intervention rights apply sought verification of the Indian child’s employed by the State agency due to a in any State court proceeding for the status with the Tribes of which the child concern about the potential that the foster-care placement of, or termination might be a citizen. The determination of State worker may have a bias, and of parental rights to, an Indian child. 25 whether the child is an ‘‘Indian child’’ noting that the original intent of the U.S.C. 1911(b), (c). Similarly, section is a threshold inquiry; it affects the requirement for a qualified expert 1915 of the statute provides placement jurisdiction of the State court and what witness was to combat such bias. Others preferences that apply in any adoptive law applies to the matter before it. See, requested the prohibition be extended to placement of an Indian child under e.g., In re A.G., 109 P.3d 756, 758 (Mont. private agencies and Federal agencies. State law, without specifying whether 2005) (whether child is an ‘‘Indian These commenters stated that it is a that adoption is the result of a voluntary child’’ is a ‘‘threshold inquiry’’ and conflict of interest, or at least the or involuntary termination of parental must be definitively resolved before appearance of impropriety, for the rights. And, section 1913 of the statute termination of parental rights). Section agency seeking placement to claim to be specifically addresses voluntary (a) mirrors the provision in the an expert in whether the child should proceedings, and provides a number of proposed rule; section (b) was added to be placed. significant protections to parents. clarify the obligation to confirm a Response: The final rule adds a The Department is cognizant that child’s status as an ‘‘Indian child.’’ provision prohibiting the social worker voluntary proceedings require • FR § 23.124(c) clarifies that the that is regularly assigned to the child consideration of the interests of the regulatory provisions addressing the from serving as the qualified expert Indian child’s biological parents to application of the placement witness, to help to address concerns direct the care, custody, and control of preferences apply with equal force to regarding bias or conflicts. In addition, their child. See, e.g., Troxel v. Granville, voluntary proceedings. this provision reflects the congressional 530 U.S. 57, 65 (2000). The rights of the • The final rule does not include a direction that ‘‘[t]he phrase ‘qualified child, including the rights of the child provision requiring agencies and State expert witnesses’ is meant to apply to as an Indian, must also be considered. courts to provide notice to the Indian expertise beyond the normal social State and Tribal governments also have Tribe of voluntary proceedings. As a worker qualifications.’’ H.R. Rep. No. a sovereign interest in protecting the practical matter, notice to the Tribe may 95–1386, at 22. welfare of the child. And Congress has be required in order to comply with

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other provisions of the statute or private adoption placements made • The exercise of exclusive Tribal regulation (see, e.g., FR § 23.124(b)). In voluntarily by parents are covered by jurisdiction over Indian children who the Department’s view, it is a best ICWA. Among the reasons stated in reside or are domiciled within the practice to provide such notice. support of this provision were: reservation or who are wards of Tribal • FR § 23.125 details how consent • Private adoption placements court (25 U.S.C. 1911(a)); must be obtained in a voluntary contribute to the wholesale separation • The exercise of concurrent proceeding, and is designed to ensure of Indian children from their families, jurisdiction over Indian children by that the procedural protections provided culture and Tribes; transferring the proceeding to Tribal by ICWA are implemented in each case. • Indian children are routinely court (25 U.S.C. 1911(b)); The final rule makes some wording adopted into non-Indian homes through • Intervention in voluntary foster-care changes from the proposed rule, but is private adoptions because adoption placement and termination-of-parental- substantively similar. agencies control which homes the birth rights proceedings (25 U.S.C. 1911(c)); • FR § 23.126 describes what parents choose from; • The opportunity to provide an information a consent document should • There are hundreds or thousands of interpreter to a parent or Indian contain. The final rule makes some Indian homes that would like to adopt custodian (25 U.S.C. 1913(a)); wording changes from the proposed Indian children; • Monitoring and compliance (filing a rule, but is substantively similar. • ICWA as a whole does not only petition to invalidate proceedings) (25 • FR § 23.127 describes how pertain to involuntary proceedings. U.S.C. 1914); withdrawal of consent to a foster-care One Tribe recounted a situation • Assistance in identifying placement is achieved. It clarifies that where the Tribe intervened in a placements and providing information the parent or Indian custodian may voluntary adoption and the Tribal on ‘‘prevailing social and cultural withdraw consent to foster-care member changed her mind and placed standards’’ in the Indian community (25 placement at any time; requires the the child with a placement that U.S.C. 1915(d)); filing of an instrument under oath, and preserved the child’s ties to family, • Facilitation of documentation of if consent is properly withdrawn, culture, and community. efforts to comply with the order of requires the immediate return of the Response: The final rule clarifies preference (25 U.S.C. 1915(e)). child to the parent or custodian. • FR § 23.128 addresses withdrawal which provisions are applicable to A few commenters asserted that the of consent to termination of parental voluntary proceedings. See e.g., FR proposed requirement for notice in rights or adoption. The final rule § 23.104. It balances the interests of voluntary proceedings addresses an includes termination of parental rights, biological parents with the Federal ambiguity in the statute: The provision to better match the statutory provision. policy promoting retention of Indian at section 1913 addressing consent for See 25 U.S.C. 1913(c). The final rule, children within their extended family voluntary termination does not address like the proposed rule, requires that a and Tribal community whenever how the provision interacts with other withdrawal of consent be filed in court possible. provisions of the Act. A few or made by testifying in court, and that Comment: A few commenters stated commenters stated that the proposal after withdrawal of consent is filed, the that the proposed rule treats the child as addresses Congress’s concern about both child must be returned to the parent or property of the Tribe, inviting Tribal State and private agency adoptions. Indian custodian. interference with the parent’s right to These commenters assert that birth make decisions. parents’ rights are balanced against the 1. Applicability of ICWA to Voluntary Response: The rule in no way treats government’s interest in the child’s Proceedings—In General the child as property of the Tribe. safety. Comment: Several commenters noted Tribes, like other governments, have a One commenter noted that while the and supported the applicability of sovereign interest in the welfare of their statute explicitly requires notice in ICWA to voluntary placements. A citizens, and in particular, their involuntary proceedings, it does not commenter stated that the proceedings children. The final rule balances this preclude notice in voluntary identified in PR § 23.103(f) (voluntary interest with a parent’s interest in proceedings. Other stated reasons for proceedings in which the parent or directing the care, custody, and control support of requiring notice in voluntary Indian custodian may regain custody of their child. proceedings were: • Voluntary adoptions are often used upon demand) are those that operate 2. Applicability of Notice Requirements to skirt around ICWA; outside of the court and child-welfare to Voluntary Proceedings systems, and that these are distinct from • Including the Tribe in voluntary those described in PR § 23.103(g) (in Comment: Many commenters stated placements will help find suitable which a parent consents to foster care or support for the provision of the placements and lead to placement termination of parental rights). proposed rule related to notice to Tribes stability; Response: Certain provisions of the in voluntary proceedings. These • Requiring notice in voluntary final rule are applicable to voluntary commenters noted that Tribes are proceedings is consistent with several placements. To clarify which parens patriae for their member State laws, including California SB 678 placements are outside of ICWA, the children and that, when Tribes do not and the Oklahoma Indian Child Welfare final rule defines ‘‘upon demand’’ to receive notice in voluntary proceedings Act, and Tribal-State agreements, and mean verbal demand without any they are effectively denied rights and that nationalization of the requirement required formalities or contingencies. protections granted by ICWA. ensures equal treatment on the issue Section 1913 of the statute Specifically, a Tribe must receive prior across jurisdictions; (implemented by FR § 23.103(g)) notice of a voluntary proceeding in • Requiring notice allows the Tribe requires formalities for consent and order to avail itself of the following the opportunity to assist the mother withdrawal of consent of a foster-care statutory rights and protections: with any situations leading her to feel placement. • The opportunity to verify a child is that she cannot raise her child. Comment: Several commenters a member, and therefore subject to A few commenters suggested adding supported PR § 23.103(g) stating that ICWA; that the notice to Tribes of voluntary

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proceedings is to permit the Tribe to agency ‘‘shall give weight’’ to the Response: As discussed above, the determine whether the child involved is parent’s desire for anonymity and final rule requires notice to Tribes when an Indian child. nothing in the statute requires notice to necessary to determine a child’s status Several other commenters opposed Tribes in voluntary proceedings. These as an ‘‘Indian child.’’ Tribes, like other the proposed requirement for notice in commenters also stated that requiring governments, are equipped to keep such voluntary proceedings, stating that it is verification and notice in voluntary inquiries confidential, and the final rule contrary to the plain language of the proceedings even where the parent has requires this of Tribes. While this statute because the notice provisions at expressed a desire for anonymity inquiry to the Tribe may require the section 1912 apply only to involuntary violates constitutional privacy rights State to share confidential information, proceedings and the provisions specific and the non-discrimination provisions this sharing is a government-to- to voluntary proceedings at section 1913 of the Multi-Ethnic Placement Act. A government exchange of information make no mention of notice. These few commenters argued that it is good necessary for the government agencies’ commenters also pointed to case law public policy to allow for anonymity performance of duties. Tribes are often concluding there is no Tribal right to without notice to the Tribe and others treated like Federal agencies for the notice in voluntary proceedings and because removing the option for a purposes of exchange of confidential past congressional attempts to amend ‘‘quiet adoption’’ will make other information in performance of ICWA to require this notice as proof that options, such as abortion or taking governmental duties. See, e.g., Indian the Act currently does not require such advantage of ‘‘safe haven’’ laws to Child Protection and Family Violence notice. anonymously abandon a child more Prevention Act, 25 U.S.C. 3205; Family Several commenters stated that desirable. Rights and Education Protection Act, 20 requiring notice in voluntary A few commenters supported this U.S.C. 1232(g). The final rule balances proceedings violates an individual’s provision and requested adding that a the rights of the parents to rights to privacy and due process, and request for anonymity does not relieve confidentiality with the need to will result in children not being adopted the obligation to comply with any other determine the Indian status of the child. because the birth parents will be forced provision of ICWA as well. These Comment: Several commenters noted into a choice of doing what they believe commenters stated that Tribes can work that State ‘‘safe haven’’ laws, such as the is best for the child or preserving their within their Tribal systems to keep the law in Wisconsin and Minnesota, that constitutionally protected privacy and information confidential and that these allow parents to anonymously anonymity. One commenter stated her regulations are consistent with the relinquish children, undermine ICWA belief that the birth parent’s desire approach taken in some States. One and suggested addressing this issue in should be paramount. One commenter commenter stated that, without this the regulations. Some commenters pointed to the Supreme Court’s decision asserted that the Federal ICWA in Whalen v. Roe, 429 U.S. 589 (1977), provision, adoption attorneys and preempts State ‘‘safe haven’’ laws. as protecting parents’ right to privacy. agencies that seek to place Indian A few commenters stated that the children with non-Indian families need Others suggested adding a requirement regulations should suggest, rather than only tell the parents to request for representatives of safe haven mandate, notice in voluntary anonymity to enable placement without facilities to ask the parents to provide proceedings because the Act does not complying with ICWA. One commenter information regarding Tribal affiliation require notice but such notice may be stated that the link between notice to and then inform any agency or court advisable to protect the Tribe’s right to the Tribe and harm to the parents is involved. intervene. attenuated and that the alleged Response: The operation of State ‘‘safe Response: The final rule has been constitutional right to privacy would be haven’’ laws is beyond the scope of this changed from the proposed rule, and an expansion of Supreme Court rulemaking. Child-custody proceedings does not require in all cases that notice jurisprudence. involving children relinquished under be provided to Tribes of voluntary A few commenters specifically these laws must still comply with proceedings. The final rule does require addressed PR § 23.107(d)’s requirement applicable requirements under ICWA that the court make a determination of that the agency or court keep documents and these regulations. whether the child is an ‘‘Indian child,’’ confidential and under seal. A State Comment: A few commenters because this is essential in order to commenter requested explanation for requested clarification that Health assess the State court’s jurisdiction and how it could be possible to keep the Insurance Portability and what law applies. An inquiry with one documents confidential and under seal Accountability Act of 1996 (HIPAA) or more Tribes may be necessary in while still seeking verification and only applies to medical information and some cases to confirm a child’s status as notice. A few other commenters does not apply to information on Tribal an ‘‘Indian child.’’ The final rule does requested a revision to state that the affiliation. not preclude State requirements for requirement to keep documents Response: These comments are notice in voluntary proceedings in other confidential and under seal may not beyond the scope of this rulemaking. circumstances. The Department allow the court to deny access to the Comment: A few commenters stated recommends that Tribes be provided documents by a Tribe or any party that that notice is necessary to address notice in voluntary proceedings. needs them to fully present their situations where the mother places a Comment: Many commenters opposed position in the child-custody child voluntarily for adoption, but the the provisions at PR § 23.107(d) stating proceeding. One commenter noted that, proceeding is involuntary to the father. that a request for anonymity in just as no parent in a child-custody Response: In situations where a voluntary proceedings does not relieve proceeding has an anonymity interest mother voluntarily places an Indian the obligation to obtain verification from that supersedes a State’s sovereign child for adoption, but the proceeding is the Tribe and provide notice. These interest in protecting children, neither involuntary to the father, then the commenters stated that requiring notice does a parent have an anonymity involuntary proceedings requirements to Tribes in voluntary cases is contrary interest that supersedes a Tribe’s under section 1912 of the Act apply to the plain language of the statute, sovereign interest in protecting (e.g., notice, active efforts, evidence because the statute states the court or children. beyond a reasonable doubt including

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the testimony of qualified expert good cause to the contrary. The reviewed the placement options that witnesses). regulation likewise requires that the comply with the order of preference. Comment: A few commenters stated preferences be applied in both voluntary See FR § 23.132(c)(1). This balances the that the proposed language applying and involuntary placements, but notes interest of the parent with the other ICWA to voluntary placements may that a basis for good cause to deviate interests protected by ICWA. create barriers when parents agree to from the placement preferences may be Comment: One commenter raised out-of-home placements to allow them the request of one or both of the parents, that, in step-parent adoptions, an Indian to engage in informal supervision if they attest that they have reviewed the family should not come before an Indian services that provide intensive support placement options that comply with the mother who wants her husband to adopt to families to prevent court intervention. order of preference. The regulation her Indian child. Response: If a parent agrees to out-of- therefore permits parents to choose a Response: Adoptive placement with a home placement but may not regain placement for their child that does not step-parent would meet the placement custody of the child upon verbal comply with the preferences. See FR preferences of the Act, because the first request, the out-of-home placement is a § 23.132(c). placement preference is a member of the child-custody proceeding, FR § 23.2, Comment: A few commenters stated child’s extended family and step- and ICWA requirements (for voluntary that they intentionally chose to parents are included in the definition of or involuntary proceedings, as the case disassociate from the Tribe and ‘‘extended family member.’’ See 25 may be) are applicable. ICWA therefore find it ‘‘offensive’’ that a Tribe U.S.C. 1903(2); 1915(a); FR §§ 23.2, establishes minimum Federal standards could claim their child as a member. 23.130(a)(1). that require court involvement at certain One commenter stated that Tribal Comment: A few commenters points. members who choose not to live on a opposed requiring a diligent search for placements in a voluntary adoption 3. Applicability of Placement reservation should not be subject to context because it conflicts with the Preferences to Voluntary Proceedings their Tribal governments making choices for their children, such as where parent’s freedom to choose who will Comment: A few commenters stated to place their infants for adoption. raise their children. One commenter their support of the proposed provision Response: Parents who choose to stated that, by the time a parent goes to clarifying that placement preferences dissociate from the Tribe by not an adoption agency, the parent has apply to voluntary proceedings. A enrolling or by disenrolling (and by not already explored potentially placing commenter suggested revisions to enrolling their child in the Tribe) are within the family or community and has clarify that the placement preferences not subject to ICWA because the child ruled it out. apply to both involuntary and voluntary will not qualify as an ‘‘Indian child.’’ If, Response: The final rule does not proceedings because otherwise, parents however, the child is an ‘‘Indian child,’’ include the provision that the who proceed through attorneys rather the Tribe has a legitimate and federally commenters identified. than an ‘‘agency’’ may interpret the recognized interest in the welfare of that Comment: One commenter stated that provision to apply only to involuntary child and the maintenance of ties to the applying the placement preferences to proceedings. Tribe. The final rule balances this voluntary adoptions will result in Many commenters opposed this interest with the interests of parents in Indian children having a more difficult provision. Commenters in opposition to directing the care, custody, and control time being adopted if there are no this provision state that the Tribe’s of their child. available families within the placement rights should not ‘‘trump’’ the rights of Comment: A few commenters stated preferences. the birth parents to choose what they that looking at what is in the best Response: The placement preferences believe to be the best adoptive interest of the child should come before for adoptions cover a wide range of placements for their children and what everything else and nobody other than individuals, including extended family, placement they as the parents believe is the parents should be able to determine other citizens of the Indian child’s in the best interests of the child. what best interest means to them. These Tribe, and other Tribal citizen families. Commenters stated that the proposed commenters stated that culture should Nevertheless, good cause may be found rule takes away parents’ ability to make be a consideration but the Tribe should to deviate from the placement placement plans for their children. not be able to interfere if the family preferences based on the parent’s Several commenters asserted that birth chooses a non-preferred adoptive request for placement with another parents may choose to perjure placement. Commenters also stated that family or lack of available placements themselves to withhold information on birth mothers of Indian children should that meet the preferences, among other Tribal membership, terminate a have the same rights as all other birth reasons. See FR § 23.131. pregnancy, or may feel forced to parent mothers under the Constitution to the child themselves in an undesirable choose who will raise the child. A few 4. Applicability of Other ICWA environment because they will not be commenters cited Supreme Court cases Provisions to Voluntary Proceedings able to choose the adoptive family, or addressing constitutional rights with Comment: Several commenters stated may ultimately have the child taken respect to family autonomy. See, e.g., there is no Tribal right to intervene in away involuntarily. Some stated that Troxel, 530 U.S. at 66; Santosky, supra. voluntary proceedings because section this rule will prevent adoptive families A commenter cited to an Iowa Supreme 1911(c) provides the right only in State from being open to adopting Indian Court decision stating that ICWA does court proceeding for the foster-care children due to the fear that the Tribe not curtail a parent’s right to choose the placement of, or termination of parental could override the birth parents’ choice family she feels is best suited to raise rights to, Indian child. Other and take the child away. her child. In re the interest of N.N. E., commenters stated that there is a Response: The plain language of 752 N.W.2d 1, 9 (Iowa 2008). compelling governmental interest of section 1915(a) of the Act requires that Response: While the placement Tribes that supports intervention of the placement preferences be applied preferences apply to voluntary right, to protect its sovereign interest in ‘‘in any adoptive placement,’’ which placements, the final rule allows birth Tribal children, and the welfare of includes both voluntary and involuntary parents to choose families outside the Indian children is the same whether the adoptive placements, in the absence of preferences if they attest that they have proceeding is voluntary or involuntary.

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Response: The commenters are correct 6. Consent in Voluntary Proceedings Comment: Several commenters stated that section 1911(c) refers to Comment: A commenter suggested it would be unclear what consent ‘‘termination of parental rights’’ but not beginning PR § 23.124(a) with ‘‘any procedures to follow in a voluntary ‘‘adoptive placement’’; however, voluntary consent to’’ rather than ‘‘a proceeding if a child is treated as an nothing in the Act restricts the phrase voluntary termination.’’ Indian child, and then the Tribe later ‘‘termination of parental rights’’ to Response: The final rule makes this determines the child is not eligible for involuntary proceedings. By its plain editorial change for consistency. See FR membership. Under those language, the statute permits Tribal § 23.125(a). circumstances, the court would have intervention in a voluntary termination- Comment: A commenter noted that told the parent they have the right to of-parental-rights proceeding. PR § 23.124 is important because withdraw consent at any time prior to Comment: One commenter stated that agencies and attorneys have used termination of parental rights; whereas, active efforts are required in voluntary voluntary consent to essentially ‘‘trick’’ the right to revoke consent under State proceedings, and another stated they are parents and extended family into law may be more limited. not. permanently surrendering their Response: In the situation described Response: The statutory provision custodial rights. The commenter notes by the commenter, if the State court requiring active efforts appears in the that safeguards, including that the determines that the child is not an section of the Act that primarily consent be recorded before a judge, are Indian child, the State court would need addresses involuntary proceedings. See essential to protecting rights and to determine whether to allow the 25 U.S.C. 1912(d). The regulation eliminating the possibility of dispute withdrawal under State law. Comment: A commenter suggested therefore does not require a showing of over intent, preventing litigation, and adding that the written consent must be active efforts to prevent the breakup of avoiding emotional trauma. Another by both the mother and father. Another the Indian family in voluntary commenter stated that the rule should commenter suggested adding that a proceedings. instead allow for consent to be entered known biological parent must have the Comment: One commenter requested before a notary public to save time and opportunity to consent or object where clarification as to whether the rule is money. the other parent has voluntarily saying the right in section 1912(b) to Response: The regulation’s consented. appointment of counsel in involuntary requirement that consent be recorded Response: An individual parent’s proceedings is also available in before a judge repeats the statutory consent is valid only as to himself or voluntary proceedings (because PR requirement. See 25 U.S.C. 1913(a), FR herself. § 23.111(c)(4)(iv) and (v) and PR § 23.125. § 23.111(f) require the notice to include Comment: A commenter Comment: One commenter suggested recommended revising ‘‘need not be statements regarding the right to clarifying that the court of competent counsel). made in open court’’ to clarify that the jurisdiction may not be the same court consent still must be recorded before a Response: The statutory provision where the child-custody proceeding judge, but need not be recorded in a requiring the right to court-appointed takes place. session open to the public. counsel appears in the section of the Act Response: Neither the statute nor the Response: FR § 23.125(d) clarifies that that primarily addresses involuntary regulations limit the location of the the consent must be recorded before a proceedings. See 25 U.S.C. 1912(b). court of competent jurisdiction. judge, though it need not be recorded in 5. Applicability to Placements Where Comment: A commenter suggested the a session open to the public. Return is ‘‘Upon Demand’’ ‘‘timing limitations’’ and ‘‘point at Comment: A commenter stated that which such consent is irrevocable’’ the provision that ‘‘a consent given prior A few commenters requested deletion include cross-references to distinguish to or within 10 days after the birth is not or clarification of PR § 23.103(f) because consent to foster-care placements (to valid’’ infringes on a parent’s right to of the risk that it will improperly which no time limitations apply) in PR arrange for adoption. exclude certain adoptive placements § 23.126 and adoptions (to which there Response: The final rule retains this from ICWA. One commenter suggested are time limitations—may be withdrawn provision because it is statutory. See 25 as an alternative ‘‘voluntary placements at any time prior to the entry of the final U.S.C. 1913(a). made without involvement of an agency decree of termination or adoption) in PR Comment: A commenter suggested or State court where the parent can § 23.127. allowing incarcerated parents that regain custody of the child upon Response: The final rule clarifies the cannot leave prison to attend court for demand are not covered by ICWA.’’ One applicable timeframes in FR §§ 23.127, this purpose to consent without commenter stated that if the State is 23.128. attending court to avoid undue delays in involved, there is always the threat of Comment: A few commenters permanency for children. involuntary removal if the parent does suggested adding a requirement that the Response: The final rule encourages not ‘‘agree’’ to the placement, and that court explain on the record the the use of alternative methods of these placements should be subject to consequences of consent, right to participation such as participation by ICWA. This commenter suggested withdraw consent, and procedure for telephone, videoconferencing or other adding that every placement in which withdrawing consent, and at what point methods. See FR § 23.133. the State has a say should be treated as the right to withdraw ends. an ICWA placement. Response: FR § 23.125(b) & (c) 7. Consent Document Contents Response: As mentioned above, the requires this explanation on the record. Comment: Commenters suggested final rule defines ‘‘upon demand’’ to Comment: A commenter requested requiring additional information in the mean verbal demand without any clarification that the right to withdraw consent document (PR § 23.125), such as required formalities or contingencies consent cannot be waived. the name and address of the non- and adds to the definition of ‘‘voluntary Response: The right to withdraw custodial parent, parents’ Tribal placement’’ that the placement be consent is a statutory right. Congress did enrollment numbers, the name and without a threat of removal by a State not include a procedure for waiving the address of prospective adoptive or agency. See FR § 23.2. right. preadoptive parents, and details

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regarding the right and timeframes for placement or termination-of-parental- have uniformly interpreted section withdrawing consent. rights proceedings can be reasonably 1913(c) to cut off the right to withdraw Other commenters stated that the expected to know that there are court consent upon entry of the final order extent of information proposed is proceedings concerning their child, and terminating parental rights, even if an inappropriate, and suggested deleting: the final rule balances the need for a adoption decree has not been entered. • The address of the consenting clear indication that the parent wants to Other commenters supported the parent because the information would withdraw consent with the parent’s language ‘‘whichever is later.’’ One already be in other files and could cause interest in easily withdrawing consent. noted that a child has no legal parents confidentiality concerns; and Comment: A few commenters after termination but before the final • Identification and addresses of opposed the requirements for decree of adoption, so if the purpose of foster parents because of confidentiality. withdrawal of consent to be filed. A adoption is to provide the child with Response: The final rule establishes commenter stated that ICWA’s intent parents, then the biological parents or that the written consent must include was to make it as easy as possible to Indian custodian should be allowed to the name and birthdate of the Indian withdraw consent in furtherance of resume parental responsibilities up to child, the name of the Indian child’s having Indian children raised by their the point of a finalized adoption. Tribe, identifying Tribal enrollment families, so they should be able to do so Another stated that this phrase number, if known, and the name of the in any way where the intent to addresses confusion caused by the consenting parent. It must also clearly withdraw is clear. Another commenter statutory phrase ‘‘as the case may be’’ to set out any conditions to the consent. stated that State law may permit construe the original intent of the See FR § 23.126. A State may choose to revocation without filing an instrument provision that would establish a include additional information. in court, and that the requirement for nationwide standard that does not limit Comment: A few commenters filing may delay return of the child. a parent’s right to end a possible suggested adding a provision stating Response: The final rule continues to adoption and secure return of the child. that any consent not executed as require a filing of the withdrawal with Response: As a commenter noted, the described is not binding. the court, but adds testimony before the statute uses the phrase ‘‘as the case may Response: The final rule requires that court as an option to fulfill this be’’ rather than specifying whichever is any conditions be set out in the written requirement, because the formality later. See 25 U.S.C. 1913(c). To better consent, because section 1913(a) roughly equal to that required for the address the meaning of ‘‘as the case may requires the consent to be in writing in original consent is appropriate and it is be,’’ the final rule treats each proceeding order to be valid. See FR § 23.126(a). important that the court and other separately, so that a parent may parties know when the parent seeks to withdraw consent to a termination of 8. Withdrawal of Consent withdraw consent. The final rule sets parental rights any time before the final Comment: A few commenters this standard as a default, but States decree for that termination of parental suggested adding when consent to a may have additional methods for rights is entered, and a parent may termination of parental rights or withdrawing consent that are more withdraw consent to an adoption any adoption or consent to a foster-care protective of a parent’s rights that would time before the final decree of adoption placement may be withdrawn. then apply. is entered. Response: The final rule addresses the Comment: One commenter stated that Comment: A commenter stated that deadline for withdrawing consent to the the return of the child in PR § 23.126(b) PR § 23.127(b) places the burden on the termination of parental rights and should not be immediate but should be court to notify the placement of the adoption, and adds that consent to a ‘‘as soon as practicable’’ as stated in PR withdrawal of consent, but in some foster-care placement may be § 23.127(b), because there are cases the court may not know the withdrawn ‘‘at any time.’’ See FR circumstances where immediate return contact information for the placement § 23.127, § 23.128. is not practical. Another commenter (e.g., where consent was filed in a Comment: A commenter requested noted that section 1913 of the Act does different court than the one with current clarification that the parent not specify when the child must be jurisdiction and placement was withdrawing the consent does not need returned. arranged by private parties). to be the person who files the Response: The final rule accepts the Response: The final rule (like the withdrawal in court because many suggested edit for return of a child ‘‘as proposed rule) requires the court to parents may not have legal soon as practicable’’ if a parent contact the party by or through whom representation and may lack the withdraws consent to foster-care any preadoptive or adoptive placement sophistication to file papers with the placement, but the Department notes has been arranged. In most cases this court and the parent may not be that in most cases the return should be will be the agency, whether public or informed as to which court the consent nearly immediate because foster-care private. The agency is expected to have was filed in. This commenter stated that placement is necessarily intended to be the contact information for the the parent should be allowed to file the temporary. The final rule retains the placement. withdrawal with current custodians, requirement for return of the child ‘‘as Comment: A commenter suggested their attorney, or the agency that took soon as practicable’’ when the parent using the word ‘‘court’’ instead of ‘‘clerk the consent, or as a last resort with BIA. withdraws consent to a termination or of the court’’ which may be too specific. Response: The final rule sets as a adoption. See FR §§ 23.127, 23.128. Response: The final rule uses ‘‘court’’ default standard that the parent or Comment: A few commenters instead of ‘‘clerk of the court.’’ See FR Indian custodian must file a written opposed the provision stating that § 23.128(d). withdrawal of consent with the court, or consent to termination of parental rights Comment: A commenter suggested testify before the court, but that State or adoption may be withdrawn any time adding a requirement that the court law may provide additional methods for prior to the entry of the final decree of notify the consenting parent or Indian withdrawing consent. See FR § 23.127, termination or final decree of adoption, custodian of the entry of a final decree § 23.128. This is not intended to be an ‘‘whichever is later;’’ rather than the of adoption within 15 days so that they overly formalistic requirement. Parents statutory language, ‘‘as the case may know there is no longer a right to involved in pending foster-care be.’’ These commenters state that courts withdraw the consent. This commenter

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also suggested requiring the court to Tribes whenever possible. Section 1915, ‘‘maximizes a child’s connection to his notify the consenting parent every 120 which lays out the placement or her family’’); Tiffany Conway & days following the consent, to keep preferences, constitutes the ‘‘most Rutledge Hutson, Is Kinship Care Good them informed as to the progress of important substantive requirement [that for Kids?, Center for Law and Social adoptive placement in case an adoption ICWA] imposed on state courts.’’ Policy 2 (Mar. 3, 2007) (‘‘[T]he research never occurs. Holyfield, 490 U.S. at 36. It establishes tells us that many children who cannot Response: The final rule does not a series of preferred placements for live with their parents benefit from incorporate these requirements, as the foster care, preadoptive, and adoptive living with grandparents and other statute does not require such notice. placements. It also allows the Indian family members.’’) (emphasis omitted). child’s Tribe to establish a different This is true for children who are placed 9. Confidentiality and Anonymity in order of preference. The party urging in foster care as well as those who are Voluntary Proceedings that the ICWA preferences not be adopted. See Kinship Care Standards, at Comment: Many commenters opposed followed bears the burden of proving by 5 (noting beneficial outcomes of kinship the proposed rule on the basis that it clear and convincing evidence the care for foster care including children would violate the parents’ right to existence of ‘‘good cause’’ to deviate being less likely to experience multiple privacy, confidentiality, and anonymity from such a placement. 25 U.S.C. placements and more likely to be in choosing a placement. Among the 1915(a), (b); FR § 23.132(b). successfully reunified with their problematic provisions these Congress established preferred parents); Adoption Standards § 4.23; commenters pointed to were: placements in ICWA that it believed Marc A. Winokur, et al., Matched • PR § 23.123(a) requiring an inquiry would help protect the needs and long- Comparison of Children in Kinship Care be made into whether the child is an term welfare of Indian children and and Foster Care on Child Welfare Indian child in voluntary proceedings, families, while providing the flexibility Outcomes, 89 Families in Soc’y: J. because this will result in the parents to ensure that the particular Contemp. Soc. Sciences 338, 344–45 losing their privacy and confidentiality, circumstances faced by individual (2008) (reporting better outcomes for particularly in small Tribal Indian children can be addressed by children in kinship care on several communities; and courts. In §§ 23.129–23.132, the final metrics). Congress recognized that this • The requirement to inform members rules provide guidance to States to general child-welfare preference for of the Indian child’s extended family, in ensure nationwide uniformity of the placement with family is even more order to identify a placement. application of these placement important for Indian families, as one of These commenters noted that the preferences as well as the standards for the driving concerns leading to the 1979 guidelines stated that the Act gives finding good cause to deviate from passage of ICWA ‘‘was the failure of confidentiality a ‘‘much higher priority’’ them. non-Indian child welfare workers to in voluntary proceedings, and that the The preferences in ICWA and the understand the role of the extended Act directs State courts to respect final rule codify the best practice in family in Indian society.’’ Holyfield, 490 parental requests for confidentiality in child welfare of favoring extended U.S. at 35 n.4. voluntary proceedings. family placements, including placement Even if biological relatives are not Response: The final rule requires, for within a child’s broader kinship available for placements, there are the reasons already stated, that the State community. If a child is removed from benefits to children from placements court determine whether the child is an her parents, the first choice in child- within their community, which ‘‘Indian child’’ which may, in some welfare practice for an alternative Congress recognized by establishing instances, require contacting the Tribe. placement—for all children, not just placement preferences for Tribal The final rule does not mandate Indian children—is the child’s extended members. 25 U.S.C. 1915(a), (b). Again, contacting extended family members to family. See National Council of Juvenile this is not just a principle of child- identify potential placements. The final and Family Court Judges, Adoption and welfare practice for Indian children, but rule also includes several protections to Permanency Guidelines: Improving for all children. See Kinship Care ensure confidentiality. Among these are Court Practice in Child Abuse and Standards §§ 1.1, 2.8. But it has special the following: Neglect Cases 10–11 (2000) (‘‘An force and effect for Indian children, • With regard to inquiry and appropriate relative who is willing to since, as Congress recognized, there are verification, the final rule provides that, provide care is almost always a harms to individual children and where a consenting parent requests preferable caretaker to a non-relative.’’); parents caused by disconnection with anonymity, both the State court and Child Welfare League of America, their Tribal communities and culture, Tribe must keep relevant documents Standard of Excellence for Adoption and also harms to Tribes caused by the and information confidential. See FR Services 1.10 (2000) (2000) (‘‘Adoption loss of their children. § 23.107(d). Standards’’) (‘‘The first option Recognizing the benefits of • With regard to a parent or Indian considered for children whose parents placements with family and within custodian’s consent to a placement or cannot care for them should be communities, Congress has repeated its termination of parental rights, the final placement with extended family emphasis on such placements in rule provides that, where confidentiality members . . .’’); Child Welfare League subsequent statutes in the years since it is requested or indicated, the parent or of America, Standard of Excellence for passed ICWA. For example, in order to Indian custodian does not need to Kinship Care Services 1.4 (2000) obtain Federal matching funds, a State execute the consent in a session of court (‘‘Kinship Care Standards’’) (‘‘Kinship must consider giving preference to an open to the public, as long as he or she care . . . should be the first option adult relative over a non-related executes the consent before a judge. See considered . . .’’); Elaine Farmer & Sue caregiver when determining a FR § 23.125(d). Moyers, Kinship Care: Fostering placement for a child, provided that the Effective Family and Friends relative caregiver meets all relevant M. Dispositions Placements (2008). State child protection standards, and In ICWA, Congress expressed a strong Placing children with their extended must exercise ‘‘due diligence’’ to Federal policy in favor of keeping family benefits children. See Adoption identify, locate, and notify relatives Indian children with their families and Standards 8.24, 4.23 (kinship care when children enter the foster care

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system. 42 U.S.C. 671(a)(19), (29); see that results from time spent in a non- the placement preferences based on also Miller v. Youakim, 440 U.S. 125, preferred placement that was made in unavailability of a suitable placement, 142 n.21 (1979) (noting ‘‘Congress’ violation of ICWA. FR § 23.132(d), (e). the court must determine that a diligent determination that homes of parents and The final rule also recognizes that search was conducted to find relatives provide the most suitable there may be extraordinary placements meeting the preference environment for children’’). Congress circumstances where there is good cause criteria. See FR § 23.132(c)(5). This has also required states receiving to deviate from the placement provision is required because the Federal funds to prioritize placement in preferences based on some reason Department understands ICWA to close proximity to the parents’ home, outside of the five specifically-listed require proactive efforts to comply with recognizing the importance of factors. Thus, the final rule says that the placement preferences and requires placement within the community. 42 good cause ‘‘should’’ be based on one of more than a simple back-end ranking of U.S.C. 675(5)(A). the five factors, but leaves open the potential placements. It is also Congress, through ICWA’s placement possibility that a court may determine, consistent with the Federal policy for all preferences, and the Department, given the particular facts of an children—not just Indian children—that through this regulation, continue to treat individual case, that there is good cause States are to exercise ‘‘due diligence’’ to the physical, mental, and emotional to deviate from the placement identify, locate, and notify relatives needs of the Indian child as paramount. preferences because of some other when children enter the foster care See, e.g., FR § 23.132(c), (d). These reason. While the rule provides this system. 42 U.S.C. 671(a)(19), (29). physical, mental, and emotional needs flexibility, courts should only avail ICWA requires that there be efforts to include retaining contact, where themselves of it in extraordinary identify and assist preferred placements. possible, with the Indian child’s circumstances, as Congress intended the Section 1915(a) directs that, in any extended family, community, and Tribe. good cause exception to be narrow and adoptive placement of an Indian child If there are circumstances in which an limited in scope. under State law, a preference ‘‘shall’’ be individual child’s extraordinary As requested by commenters, the given to the Indian child’s family and physical, mental, and emotional needs rules governing placement preferences Tribe. 25 U.S.C. 1915(a) (1)–(2). This could not be met through a preferred recognize the importance of maintaining language creates an obligation on State placement, then good cause may exist to biological sibling connections. The agencies and courts to implement the deviate from those preferences. See FR placement preferences allow biological policy outlined in the statute. § 23.132(c)(4). siblings to remain together, even if only ‘‘Giv[ing]’’ a ‘‘preference’’ means more The Department received many one is an ‘‘Indian child’’ under the Act, than mere prioritization—it connotes comments regarding what may because FR § 23.131(a) provides that the the active bestowal of advantages on constitute ‘‘good cause’’ to deviate from child must be placed in the least some over others. See Black’s Law the placement preferences and whether restrictive setting that most Dictionary 1369 (10th ed. 2014) the final rule should set out such approximates a family, allows his or her (defining ‘‘preference’’ as the ‘‘quality, factors. By providing clear guidance on special needs to be met, and is in state, or condition of treating some what constitutes ‘‘good cause’’ to reasonable proximity to his or her home, persons or things more advantageously deviate from the placement preferences, extended family, and/or siblings. The than others’’ and the ‘‘favoring of one the final rule gives effect to the fact that sibling placement preference does not person or thing over another’’). Thus, Congress intended good cause to be a mean ICWA applies to a sibling who is section 1915(a) requires affirmative limited exception, rather than a broad not an ‘‘Indian child’’ but rather makes steps to give preferred placements category that could swallow the rule. clear that good cause can appropriately certain advantages and a full The Department also recognizes that the be found to depart from ICWA’s opportunity to participate in the child- question of what constitutes good cause placement preferences where doing so custody determination. is a frequently litigated area of ICWA, allows the ‘‘Indian child’’ to remain This conclusion is supported by other and this litigation can result in harmful with his or her sibling. Because keeping provisions of section 1915, which work delays in achieving permanency for biological siblings together contributes in concert with section 1915(a) to children. For these reasons, the toward a setting that approximates a require that State agencies and courts Department has determined that it is family, the final rule explicitly adds make efforts to identify and assist important to provide some parameters ‘‘sibling attachment’’ as a consideration extended family and Tribal members on what may be considered ‘‘good in choosing a setting that most with preferred placements. Section cause’’ in order to give effect to ICWA’s approximates a family. See FR 1915(e) requires that, for each placement preferences. § 23.131(a)(1). If for some reason it is not placement, the State must maintain The final rule, therefore, lays out five possible to place the siblings together, records evidencing the efforts to comply factors upon which courts may base a then FR § 23.131(a)(3) mandates that the with the order of preference specified in determination of good cause to deviate Indian child should be placed, if section 1915. 25 U.S.C. 1915(e). To from the placement preferences. These possible, in a setting that is within a allow oversight of such efforts, Congress factors are discussed in more detail reasonable proximity to the sibling. In further required that those records be below in the response to comments, but addition, if the sibling is age 18 or older, made available at any time upon the include the request of the parents, the that sibling would qualify as a preferred request of the Secretary or the Indian request of the child, sibling attachment, placement, as extended family. child’s tribe. Id. Thus, reading Sections the extraordinary physical, mental, or A number of commenters praised or 1915(a) and 1915(e) together, it is clear emotional needs of the child, and the questioned the provisions at PR that Congress demanded documentable unavailability of a suitable preferred § 23.128(b) requiring, in certain ‘‘efforts to comply’’ with the ICWA placement. FR § 23.132(c). It also makes circumstances, a search to identify placement preferences. clear that a court may not depart from placement options that would satisfy Courts have recognized that State the preferences based on the the placement preferences. The final efforts to identify and assist preferred socioeconomic status of any placement rule has been modified to include a placements are critical to the success of relative to another placement or based requirement that, in order to determine the statutory placement preferences. See on the ordinary bonding or attachment that there is good cause to deviate from Native Village of Tununak v. State,

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Dep’t of Health and Soc. Servs. trauma by placing the child somewhere in reasonable proximity to his or her (Tununak II), 334 P.3d 165, 177–78 within their realm of comfort and to home, extended family, and/or siblings. (Alaska 2014) (noting that before a court promote the best interests of the child The Department disagrees, however, in which an adoption proceeding is by keeping the child with her family or that this language provides a basis for pending can even ‘‘entertain[] argument within her Tribal community and not following the preference order in the that there is good cause to deviate from culture. ordinary case. section 1915(a)’s preferred placements, Several opposed PR § 23.128, saying it Comment: A commenter opposed the it must searchingly inquire about the gives higher priority to the Tribe than to language in PR § 23.128(a) stating that existence of, and [the State’s] efforts to the family, and prevents the court from the placement preferences always apply comply with achieving, suitable section weighing relative interests. These without a cross-reference to the good 1915(a) preferred placements’’); In re commenters stated that placement cause provision. Likewise, a few T.S.W., 276 P.3d 133, 142–44 (Kan. preferences should be secondary to the commenters stated that PR § 23.129 and 2012) (rejecting a lower court’s individual child’s needs and welfare. § 23.130 should both use the phrase ‘‘in determination that there was good cause Response: The Act requires that States the absence of good cause to the to deviate from the placement apply a preference for the listed contrary’’ as qualifying language preferences based, in part, on the placement categories. 25 U.S.C. 1915. because Congress intended State courts adoption agency’s failure to make As discussed above, Congress to consider the unique circumstances adequate efforts to identify potential established preferred placements in affecting individual children and the preferred placements); In re D.W., 795 ICWA that it believed would help statute includes the language ‘‘in the N.W.2d 39, 44–45 (S.D. 2011) (carefully protect Indian children’s needs and absence of good cause to the contrary’’ examining the sufficiency of the steps welfare, while providing the flexibility in each paragraph (section 1915(a) and that the State took to find a suitable to ensure that particular circumstances (b)). preferred placement); In re Jullian B., 82 faced by individual Indian children can Response: The provision establishing Cal. App. 4th 1337, 1347 (Cal. Ct. App. be addressed by courts. In enacting that good cause must exist to depart 2000) (emphasizing that ICWA requires ICWA, Congress also recognized that from the placement preferences is the State to ‘‘search diligently for a State and private agencies and State located at FR § 23.129(c). Specific placement which falls within the courts sometimes apply their own biases provisions regarding good cause are set preferences of the act’’); Pit River Tribe in assessing what placement best meets out in FR § 23.132; it is not necessary to v. Superior Court, No. C067900, 2011 the individual Indian child’s needs and repeat ‘‘in the absence of good cause to WL 4062512, at *10, *12 (Cal. Ct. App. long-term welfare. The final rule reflects the contrary’’ in FR §§ 23.130 or 23.131. Sept. 14, 2011). the statutory mandate. Comment: Several commenters Finally, the final rule provides that a Comment: A few Tribal commenters supported requiring a diligent search for court may not consider, as the sole basis suggested the rule allow for such placements within ICWA’s placement for departing from the preferences, different orders as established by Tribal preferences (extended family, Tribal ordinary bonding or attachment that law or Tribal-State agreements. families, and other Indian families) and flows from time spent in a non-preferred Response: FR § 23.129(a), FR noted this is a best practice that is in the placement that was made in violation of § 23.130(b), and FR § 23.131(c) reflect child’s best interest. A commenter ICWA. In response to commenters’ the statutory requirement that a Tribe stated that the requirement for a diligent concerns, the final rule adjusts the may establish a different order of search is critically important because proposed provision stating that preference by resolution. See 25 U.S.C. ICWA’s requirements have been ignored ‘‘ordinary bonding’’ is not within the 1915(c). The Department recognizes that and almost half the children continue to scope of extraordinary physical, mental, an order of preference established as be placed in non-preferred placements. or emotional needs. PR § 23.131(c)(3). part of a Tribal-State agreement would A few commenters suggested further The proposed provision may have constitute an order of preference emphasizing the need for States to inappropriately limited court discretion established by ‘‘resolution,’’ 25 U.S.C. identify preferred placements by in certain limited circumstances. 1915(c), particularly as the statute working with Tribes to proactively specifically authorizes Tribal-State recruit preferred placement homes. 1. When Placement Preferences Apply agreements respecting care and custody A few commenters opposed requiring Comment: Several commenters of Indian children. 25 U.S.C. 1919. a diligent search, saying it is not supported proposed PR § 23.128, Comment: A commenter stated that required by ICWA and that Congress emphasizing the need to follow the PR § 23.128(a) omits language from intended to rely on State family law to Act’s placement preferences, and noted section 1915(c) of the Act that the establish requirements for placement that it addresses one of the biggest Tribe’s order of preference should be option searches. problems in the Act’s implementation— followed only ‘‘so long as the placement Response: As discussed above, a the failure to place Indian children in is the least restrictive setting diligent search is necessarily implied by the homes of extended family and Tribal appropriate to the particular needs of the Act to comply with the placement members. One commenter pointed to the child.’’ According to this preferences. The regulations make this the repeated failure in one State to commenter, that omitted language is requirement explicit in situations where investigate preferred placements and the what makes clear that the best interest a party seeks good cause to deviate from practice of relying on bonding with non- of the child must be considered and the placement preferences based on preferred placements as good cause to provides a basis for not following the unavailability. See FR § 23.132(c)(5). depart from the placement preferences. placement preference order. Furthermore, State agencies generally Another commenter asserted that States Response: FR § 23.131 adds the search for a child’s extended family as are not pursuing placement preferences statutory language providing that the a matter of practice. even when the Tribe identifies a family placement must be the least restrictive Comment: A commenter stated that that meets the requirements. Several setting that most approximates a family, the diligent search for foster placements commenters provided reasons for why taking into consideration sibling including homes licensed, approved, or the placement preferences are so attachment, allows the Indian child’s specified by the child’s Tribe conflicts important, including to minimize special needs, if any, to be met, and is with the Act’s requirement that the

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child be placed within a reasonable facilitate more means by which to met or good cause exists to deviate from proximity to his or her home (as well as demonstrate willingness to adopt a the placement preferences. See FR other requirements associated with particular child. We encourage other § 23.132. The agency must document its Federal funding). States to follow Alaska’s lead in this search for placement preferences and an Response: While the specific portion regard. explanation as to why each higher of PR § 23.128(b) that the commenter is Comment: A few commenters stated priority placement preference could not addressing is not included in the final that it is impractical to notify each of be met. See section 1915(e) (requiring rule, FR § 23.131(a) reflects the Act’s the homes listed in PR § 23.128(b)(4) that the State maintain documentation requirements for the child to be placed (institutions for children approved by ‘‘evidencing the efforts to comply with in the least restrictive setting that most an Indian Tribe or operated by an Indian the order of preference specified in this approximates a family and in which the organization which has a program section’’); FR § 23.141. child’s special needs, if any, may be suitable to meet the child’s needs). A Comment: One commenter stated that met, and within reasonable proximity to commenter also pointed out that, the mandate that placement must the child’s home. See 25 U.S.C. 1915(b), practically, there are no accessible lists always follow the placement (c). of every Indian foster home in the State preferences is not practical because Comment: A commenter asked or whether they would want such there are 17 States with no federally whether the showing as to the diligent notification which could amount to recognized Tribes, meaning the child search for placements has to be made at hundreds of letters each year. would face a move to a location that every hearing, or whether the rule is Response: The specific portion of the would make reunification more creating a requirement that a specific provision of proposed rule § 23.128(b) difficult. placement proceeding happen in each that commenters are addressing is not Response: The fact that a no federally ICWA case that does not comply with included in the final rule. As discussed recognized Tribe is located within a the first placement preference. This above, however, the rule does include a State does not mean that there are no State commenter also expressed concern requirement that, in order to determine family members or members of Tribes regarding State resources this would that there is good cause to deviate from residing or domiciled in that State. require. the placement preferences based on Comment: Some commenters Response: The rule does not require a unavailability of a suitable placement, requested that the placement showing at every hearing that a diligent the court must determine on the record preferences allow siblings to remain search for placements has been made or that a diligent search was conducted to together even if only one child is an that a specific hearing be held to show find suitable placements meeting the ‘‘Indian child’’ as defined by ICWA. One why the first placement preference was preference criteria. See FR commenter noted that one State not attainable. The rule requires that, if § 23.132(c)(5). A diligent search will regularly finds that a placement with a the agency relies on unavailability of almost always require some contact minor sibling qualifies as a placement placement preferences as good cause for with those preferred placements that with extended family for purposes of deviating from the placement also meet the requirements for a least the placement preferences. preferences, it must be able to restrictive setting within a reasonable Response: As discussed above, the demonstrate to the court on the record proximity, taking into account the rules governing placement preferences that it conducted a diligent search. See child’s special needs. It may also recognize and address the importance of FR § 23.132(c)(5). This showing would involve contacting particular maintaining biological sibling occur at the hearing in which the court institutions for children approved or connections. determines whether a placement or operated by Indian Tribes if other Comment: One commenter stated that change in placement is appropriate. preferred placements are not available. the provision at PR § 23.128(c) stating Comment: Several commenters Comment: A few commenters had that the request for anonymity does not requested that the rule address the suggested edits to PR § 23.128(b). For relieve the obligation to comply with Alaska Supreme Court’s limitation in example, a State commenter requested placement preferences is extremely Native Village of Tununak v. Alaska to clarifications in PR § 23.128(b) as to important because many attorneys in define what a preferred placement ‘‘placement proceeding’’ and voluntary proceedings advise their family needs to do to demonstrate a ‘‘explanation of the actions that must be clients to request anonymity to avoid willingness to adopt a particular child taken to propose an alternative the placement preferences. (e.g., the individual, agency, or Tribe placement and to whom those are Response: The final rule includes a informs the court orally during a provided in the proceedings.’’ provision, discussed above, requiring proceeding or in writing of willingness Response: The final rule deletes this the court to give weight to the request to adopt). Several other commenters provision. for anonymity in applying the stated that the rule ignores the Supreme Comment: A commenter suggested preferences. See FR § 23.129(b). Court’s ruling that the preferences are changing the last preference to include Comment: A few commenters inapplicable where no eligible Indian foster homes ‘‘authorized’’ by the suggested the rule clarify the ability of placement has formally sought to adopt Tribe rather than ‘‘licensed’’ by the State-court judges to issue placement the child. Tribe. orders under ICWA. These commenters Response: As discussed above, ICWA Response: The rule includes stated that such a provision is necessary requires that there be efforts to identify ‘‘licensed’’ because that is the term the because some State codes prohibit a and assist preferred placements. As a Act uses. See 25 U.S.C. 1915(b). State judge from ordering placement, recommended practice, the State agency Comment: A commenter requested instead leaving the responsibility to the should provide the preferred clarification of whether the agency must State social workers. placements with at least enough show why the higher preferences cannot Response: While it may be the information about the proceeding so be complied with instead of a lower practice in some jurisdictions for judges they can avail themselves of the preference. to defer to State agencies, the statute preference. Alaska itself has taken Response: The final rule clarifies what contemplates court review of corrective action to address the ruling in the court will examine in determining placements of Indian children. It Tununak by modifying its standards to whether the placement preferences were requires, for example, court review of

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whether active efforts were made best interests and the order of the fathers. One suggested including (section 1912(d)) and an ‘‘order’’ for preferred placements. The criteria biological fathers in the list of foster-care placement (section 1912(e)) applicable to foster-care placements placement preferences. and termination of parental rights allow for placements in which the Response: The final rule’s placement (section 1912(f)). Further, the statute child’s special needs, if any, may be preferences reflect the statute. If the establishes a standard of evidence for met. biological father meets the criteria for foster-care-placement orders and Comment: A few commenters stated the placement preferences (for example, termination-of-parental-rights orders that the guidelines contradict the as a member of the Indian child’s Tribe), (section 1912(e)-(f)), necessarily Multiethnic Placement Act (MEPA) to he may avail himself of the placement requiring court involvement. prevent discrimination based on race, preferences. In addition, the Act Comment: A few commenters color and/or national origin when establishes that unwed fathers who have suggested adding a cross-reference in PR making placements, and that some not acknowledged or established § 23.128(d) to the section delineating the Indian children do not have an apparent paternity are not considered ‘‘parents’’ good-cause criteria. existing connection to their traditional under the Act; however, by Response: The final rule adds the culture and are thus ‘‘mainstream.’’ acknowledging or establishing paternity, Response: These comments are based requested clarification. See FR the father may become a ‘‘parent’’ under on the misunderstanding that ICWA is § 23.129(c). the Act, and avail himself of ICWA’s Comment: One commenter requested a race-based statute. Congress protections. additional clarification on the established certain placement requirements in PR § 23.128(e) for preferences based on, and in furtherance Comment: A few commenters stated maintenance of records. of, the political affiliation of Indian that the placement preferences should Response: The final rule moves the children and their parents with Tribes, extend beyond the nuclear family to requirement regarding maintenance of and the government-to-government include extended family (aunts, uncles, records from PR § 23.128(e) to FR relationship between the United States grandparents) because ICWA was § 23.141. See comments on PR § 23.137, and Tribes. Recognizing that the designed to keep Indians rooted to their below. applicability of ICWA is based on Tribes and culture if the nuclear family political affiliation rather than race, breaks down. 2. What Placement Preferences Apply, Congress made clear that MEPA should Response: Members of the child’s Generally not be construed to impact the extended family are the first-listed Comment: Several commenters application of ICWA. 42 U.S.C. preferred placement. See 25 U.S.C. expressed their strong support of the 674(d)(4), 1996b(3) (each stating this 1915(a), (b); FR § 23.130(a)(1); placement preferences as assuring that subsection shall not be construed to § 23.131(b)(1). the child’s best interests are met by affect the application of the Indian 3. Placement Preferences in Adoptive giving the child the opportunity to be Child Welfare Act of 1978). Settings placed with relatives. One commenter Comment: One commenter suggested noted that traditional Indian adding language to clarify that the Comment: One commenter suggested spirituality, culture, and history cannot preferences are in descending order of adding licensed adoptive homes to the be fully taught by a non-Indian family. preference. A commenter stated that list of placement preferences in PR Commenters stated that studies reflect States should not be allowed to skip § 23.129 and PR § 23.130. that placement of children within the steps in the preferences. Response: The rule does not specify ICWA preferences are more stable by Response: FR §§ 23.130(a) and licensed adoptive homes in the list of half than placements that do not fall 23.131(b) state that the preferences are placement preferences because the within ICWA’s preferences. in descending order, reflecting that each statute does not specify these homes, A few commenters opposed the placement should be considered and this change would not comport placement preferences. One stated that (without being skipped) in that order; with the intent of Congress to place Federal law already seeks to place the preferences are in the order of most Indian children, where possible, with children within the same family and preferred to least preferred. extended family or Tribal members. community. Another stated that the Comment: Several commenters preferences are not a mandate, and that suggested adding a provision to allow Comment: A State commenter there are not enough Indian foster the court to consider the Tribe’s requested clarification in PR § 23.129(b) homes so in some cases children have recommended placement for an Indian of the phrase ‘‘where appropriate’’ and to be placed in non-Indian homes. child, to take into consideration Tribal whether the child or parent’s preference One commenter stated that the rule custom, law, and practice when supersedes the placement preferences. should make the placement preferences determining the welfare of Indian A few commenters stated that the rule discretionary because it may not always children, as authorized by section should use the word ‘‘shall’’ or ‘‘must’’ be possible to adhere to the placement 1915(c), which states that the Tribe may to require the court to consider the preferences, and the rule must allow for establish a different order of preference. preference of the Indian child or parent, flexibility to place a child where his or Response: Congress established a in accordance with section 1915. A few her physical and emotional needs are method for the Tribe to express its other commenters supported use of best met. preferences in section 1915(c). FR ‘‘should’’ in this provision, stating that Response: As discussed above, §§ 23.129(a), 23.130(b), and 23.131(c) otherwise the Indian child’s or parent’s Congress established preferred are included in the final rule in preference would trump the placement placements in ICWA that it believed recognition of that statutory preferences. would help protect Indian children’s requirement. State courts may also wish Response: The final rule reflects the needs and welfare. The statute provides to consider a Tribe’s recommended language of the statute. This language the flexibility to ensure that special placement for a particular child. does not require a court to follow a circumstances faced by individual Comment: A few commenters stated child or parent’s preference, but rather Indian children can be addressed by that the placement preferences should requires that it be ‘‘considered’’ ‘‘where courts. The final rule reflects the child’s better protect the rights of biological appropriate.’’

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4. Placement Preferences in Foster or Response: Where the requirements of (Ariz. Ct. App. 2015); In re Alexandria Preadoptive Proceedings 25 U.S.C. 1912(d)–(e) have been met, a P. 176 Cal.Rptr.3d 468, 490 (Cal. Ct. Comment: Several commenters court evidentiary hearing may not be App. 2014); Native Vill. of Tununak v. expressed concern that unavailability of required to effect a placement that Alaska, 303 P.3d 431, 448, 453 (Alaska preferred placements will result in departs for good cause from the 2013) vacated in part on other grounds longer periods of instability for the child placement preferences, if such a hearing by 334 P.3d 165 (Alaska 2014); People or delays in permanency for the child. is not required under State law. See ex rel. S. Dakota Dep’t of Soc. Servs., section 1915(c). Regardless of the level 795 N.W.2d 39, 44, ¶ 24 (S.D. 2011); In A few commenters requested that of court involvement in the placement, re Adoption of Baby Girl B., 67 P.3d 359, timelines be imposed on finding however, FR § 23.132(a) requires that 374, ¶ 78 (Okla. Civ. App. 2003); In re preferred placements. For example, one the basis for an assertion of good cause Custody of S.E.G., 507 N.W.2d 872, 878 commenter stated that once a Tribe is must be stated in the record or in (Minn. Ct. App. 1993); but see Dep’t of notified, it should have a certain writing and the statute requires a record Human Servs. v. Three Affiliated Tribes timeframe to provide a permanent home of the placement be maintained. Section of Fort Berthold Reservation, 238 P.3d for the child or an exception to ICWA 1915(e), FR § 23.141. 40, 50 n. 17 (Or. Ct. App. 2010) should be made for the well-being of the Where a Tribe or other party objects, (addressing the issue in a footnote in child, otherwise the rule denies however, the final rule establishes the response to a ‘‘passing’’ argument). permanency for the child in the name of parameters for a court’s review of While the final rule advises that the cultural preservation. whether there is good cause to deviate application of the clear and convincing Response: The Department has not from the placement preferences and standard ‘‘should’’ be followed, it does identified any authority in the statute requires the basis for that determination not categorically require that outcome. for imposing timelines to find a to be on the record. See FR § 23.129(c). However, the Department finds that the placement; therefore, the rule does not While the agency may place a child logic and understanding of ICWA do so. The unavailability of a suitable prior to or without any determination by reflected in those court decisions is preferred placement is one of the bases the court, the agency does so knowing convincing and should be followed. for good cause to depart from the that the court reviews the placement to Widespread application of this standard placement preferences, so long as a ensure compliance with the statute. will promote uniformity of the diligent search for a preferred placement Comment: A few commenters application of ICWA. It will also prevent was conducted. FR § 23.132(c)(5). Thus, supported the requirement in PR delays in permanency that would so long as a prompt and diligent search § 23.128(b) for ‘‘clear and convincing otherwise result from protracted is made for a preferred placement, these evidence’’ that the placement litigation over what the correct burden rules should not delay permanency. preferences were met, and in PR of proof should be. So, while the Comment: A commenter suggested § 23.131(b) for ‘‘clear and convincing Department declines to establish a that a needs assessment by a qualified evidence’’ of good cause to depart from uniform standard of proof on this issue expert witness should be required in PR the placement preferences. Some of in the final rule, it will continue to § 23.130(a)(2) where it references a these commenters point out that the evaluate this issue for consideration in child’s needs. court in Tununak II overturned the any future rulemakings. Response: The statute explicitly refers initial application of only a to ‘‘special needs’’ but does not qualify ‘‘preponderance of the evidence’’ a. Support and Opposition for it as requiring the input of a qualified standard. One commenter stated that Limitations on Good Cause expert witness, as the statute does in elevating the standard of proof to ‘‘clear Comment: Many commenters other places. Therefore, the rule does and convincing evidence’’ is an supported emphasizing the need to not impose this requirement. important means of strengthening the follow the placement preferences and 5. Good Cause To Depart From statutory preferences, but recommended limiting agencies’ and courts’ ability to Placement Preferences making it permissive because ICWA deviate from the placement preferences intended State courts to retain based on subjective and sometimes Comment: A few commenters said the flexibility. See S. Rep. No. 95–597. A biased factors. Commenters reasoned: proposed rule requires a hearing on few other commenters opposed • One of ICWA’s primary purposes is whether good cause exists and opposed specifying ‘‘clear and convincing to keep Indian children connected to the requirement for an agency to wait evidence’’ as exceeding the their families, Tribal communities and for a court to act in order to depart from Department’s authority. culture, and yet, currently more than the placement preferences. One Response: The final rule states that 50% of Native American children commenter stated that this requirement the party seeking departure from the adopted are placed into non-Native is contrary to ICWA because while placement preferences should prove homes; ICWA states that the court must there is good cause to deviate from the • Defining ‘‘good cause’’ is within determine there is good cause to deny preferences by ‘‘clear and convincing DOI’s authority under ICWA; transfer, it does not require the court to evidence.’’ FR § 23.132(b). While this • Defining ‘‘good cause’’ will provide determine whether good cause to depart burden of proof standard is not clarity to on-the-ground social workers from placement preferences exists. A articulated in section 1915 of the and others because the phrase ‘‘good State commenter asserted that there will statute, courts that have grappled with cause’’ has been interpreted differently be significant workload increases for the issue have almost universally among States; agencies if there must be an evidentiary concluded that application of the clear • The provision explaining that the hearing even when there is no objection and convincing evidence standard is length of time a child is in a non- from the Tribe or parents. This required as it is most consistent with compliant placement is irrelevant is commenter also stated that requiring the Congress’s intent in ICWA to maintain consistent with best practices in child judge to determine good cause in the Indian families and Tribes intact. See In welfare; absence of the parties’ disagreement re MKT, 4368 P.3d 771 ¶ 47 (Okla. • Restrictions on good cause are puts the court in the role of case 2016); Gila River Indian Cmty. v. Dep’t. necessary to ensure courts do not administrator rather than arbiter. of Child Safety, 363 P.3d 148, 152–53 disregard ICWA’s placement preferences

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based on a non-Indian assessment of preferred placements. The final rule stated, parents are often pressured to what is ‘‘best’’ for the child, such as retains discretion for courts and accept placement and this provision through a generalized ‘‘best interest’’ agencies to consider any unique needs encourages coercion. Another analysis; of a particular Indian child in making commenter stated that there is no • Use of ‘‘good cause’’ to deviate from this determination. rationale for acceding to a parental placement preferences has become so b. Request of Parents as Good Cause request for placement in the context of liberal that it has essentially swallowed an involuntary removal of a child. ICWA’s mandate; and Comment: A commenter stated their Likewise, a few commenters stated that • Without the rule, ‘‘good cause’’ support of PR § 23.131(c)(1), requiring the parent’s preference does not leaves so much discretion to State both parents to request the deviation in automatically show good cause to courts that the Tribe rarely prevails in order for it to qualify as good cause, deviate and should only be a moving a child to a preferred placement because it will lessen instances where consideration. One commenter stated after initial placement elsewhere. the rights of the child’s mother are that parents who decided not to raise Many other commenters opposed the deemed more important than those of their child should not have unilateral rule’s definition of ‘‘good cause.’’ the father. A few commenters opposed authority to determine the child’s requiring both parents to request Among the reasons stated for this placements and whether the child will because there are instances in which opposition were: have continued contact with relatives • The rule’s basis for ‘‘good cause’’ is one parent is unavailable, cannot be and the Tribe. One commenter so narrow that it leaves courts with no found, is mentally disabled, or has been supported including the parent’s request flexibility, contrary to congressional proven unfit. One stated that there may as good cause, and asserted that a intent; be instances where both parents do not • The rule is not a reasonable agree, but the court should still be birthparent’s preference should be interpretation and will not receive encouraged to consider each parent’s considered unless otherwise proven not deference because it predetermines good request. A commenter also pointed to to be in the child’s best interest. cause even though the legislative history case law holding that a single parent’s Response: The statute explicitly explicitly states that the term ‘‘good request can constitute good cause. provides that, where appropriate, cause’’ was intended to give State courts According to this commenter, if a preference of the parent must be flexibility; noncustodial parent may not invoke considered. See 25 U.S.C. 1915(c). The • The rule excludes ‘‘best interest’’ section 1912 to thwart an adoption, regulation therefore provides that the factors as a basis for good cause even under Adoptive Couple, then a request of the parent or parents should though placements directly implicate a noncustodial parent has no right to be be a consideration in determining child’s best interests; heard on placement preferences. A whether good cause exists. See FR • The rule could require placement in commenter stated that the ordinary § 23.132(c)(1). The request of the parent a home that every party to the meaning of section 1915(c) is that the is not determinative, however. The final proceeding, including the Tribe, preference of the parent—meaning one rule includes a provision requiring that believes is contrary to the best interests or both parents—be considered in the parent or parents attest that they of the child; and applying or departing from the have reviewed the placement options • The rule violates Indian children’s placement preferences, where that comply with the order of preference rights to due process by limiting the appropriate. are intended to help address concerns factors and probative evidence a State Response: The final rule changes the about coercion. See FR § 23.132(c)(1). court can consider as compared to non- requirement for both parents to make Indian children. the request to ‘‘one or both parents,’’ in Comment: One commenter requested One commenter expressed concern recognition that in some situations, both clarifying that the parent must attest that courts may interpret the word parents may not be available to make that they have reviewed the actual ‘‘must’’ as requiring them to the request. This is also consistent with families that meet the placement automatically find good cause when any the statutory mandate that, where preferences, not just the categories. The of the listed circumstances exist. appropriate, the preference of the Indian commenter stated that if the parents still Response: As discussed above, child or parent [(singular)] shall be object after reviewing the preferences, Congress established preferred considered. 25 U.S.C. 1915(c). If the the agency or court should first be placements in ICWA that it believed parents both take positions on the required to explore other available would help protect the long-term health placement, but those positions are preferred families before concluding and welfare of Indian children, parents, different, the court should consider both there is good cause. families, and Tribes. ICWA must be parents’ positions. Response: The rule uses the term interpreted as providing meaningful Comment: A few commenters ‘‘placement options’’ to refer to the limits on the discretion of agencies and suggested the court should also consider actual placements, rather than just the courts to remove Indian children from the preference of the child’s guardian ad categories. See FR § 23.132(c)(1). A their families and Tribes, since this is litem in making the placement. court or agency may consider in the very problem that ICWA was Response: The rule does not add that determining whether good cause exists intended to address. Accordingly, the a guardian ad litem’s request should be whether a diligent search was final rule identifies specific factors that considered as good cause because conducted for placements meeting the should provide the basis for a finding of Congress expressly allowed for placement preferences. good cause to deviate from the consideration of the preference of the Comment: One commenter stated that placement preferences. These factors Indian child or parent, and did not the non-Indian foster parent should not accommodate many of the concerns include the guardian ad litem. See 25 raised by commenters, and include the U.S.C. 1915(c). be considered the de facto parent for the request of a parent, the child, sibling Comment: A few commenters purposes of this provision. attachments, the extraordinary physical, opposed the provision allowing Response: The definition of ‘‘parent’’ mental, or emotional needs of a child, consideration of the request of parents does not include foster-care providers. and the unavailability of suitable in determining good cause because, they See FR § 23.2.

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c. Request of the Child as Good Cause d. Ordinary Bonding and Attachment a biological family undermines the objective of reunification and Comment: One commenter opposed Comment: Many commented on ordinary bonding and attachment. A preservation of families. allowing consideration of the request of • Opposing arguments are the child in determining ‘‘good cause’’ high-level summary of these comments is provided here. Many commenters unfounded. at PR § 23.131(c)(2) because children Some interpreted the rule as strongly supported PR § 23.131(c)(3), can be groomed to request a certain establishing that ordinary bonding or stating that ‘‘ordinary bonding or placement and it is subjective when a attachment resulting from a non- attachment’’ does not qualify as the child is able to understand the issue. preferred placement must not be the extraordinary physical or emotional ‘‘sole basis’’ for a court refusing to Response: The statute explicitly needs that may be a basis for good cause return a child to his or her family and provides that, where appropriate, to deviate from the placement preference of the Indian child must be supported this interpretation. preferences. Some who supported the Many commenters strongly opposed considered. See 25 U.S.C. 1915(c). The provision cited agencies’ deliberate rule adds that the child must be of PR § 23.131(c)(3)’s exclusion of failure to identify preferred placements ‘‘ordinary bonding or attachment’’ as a ‘‘sufficient age and capacity to as reasons for a child being initially understand the decision that is being basis for good cause to deviate from the placed with a non-preferred placement. placement preferences. According to made’’ but leaves to the fact-finder to Among the reasons cited for support of make the determination as to age and these commenters, the main reason for this provision were: initial non-preferred placements is capacity. See FR § 23.132(c)(2). The rule • Ordinary bonding is not relevant to unavailability of homes meeting the also leaves to the fact-finder any good cause to deviate from placement placement preferences, and that despite consideration of whether it appears the preferences because ordinary bonding the best efforts of caseworkers to find child was coached to express a certain shows that the child is healthy and can preferred placements, it becomes preference. bond again. necessary to put Indian children in non- Comment: One commenter agreed • The proposed provision is limited preferred placements. Other cited with not restricting this provision to in that it still allows for consideration reasons were that preferred placements children age 12 or older, but of extraordinary bonding as good cause. were too far away or the Tribe delays recommended language that the consent • Many Western bonding and finding a preferred placement. Among be completely voluntary and that there attachment theories are not as relevant the reasons stated for opposition to the be a determination that the child can to Indian children because they are provision were: understand the decision being made, to based on non-indigenous beliefs and • Ordinary bonding is relevant to protect against the child being psychological theories about connection whether there is good cause to deviate pressured. Two other commenters stated with one or two individual parents. from the placement preferences because • Allowing normal emotional that the rule should set a baseline age breaking ordinary bonds harms the bonding to be considered good cause because otherwise there will be starkly child. different treatments of Indian children would negate ICWA’s presumption that • The importance of bonding to (e.g., reporting that South Carolina has the statutory placement preferences are children’s well-being has been found a 3-year-old competent to testify in the Indian child’s best interest. • established by documented research. whereas in Oklahoma a 12-year old is The proposed provision is needed • Indian children do not bond presumed competent to state a to address the tactic of placing Indian differently from other children. preference). children in non-preferred placements, • The proposed provision limits court Response: Each Indian child and their delaying notification to the child’s Tribe discretion. circumstances differ to a degree that it and family, then arguing good cause to • The proposed provision violates is not be appropriate to establish a deviate from the placement preferences children’s constitutional rights, giving threshold age for a child to express a based on the child’s bonding with the them less protection than other children preference. The rule leaves it to the fact caregivers (in other words, the proposed to a stable, permanent placement that finder to determine whether the child is provision is necessary to remove allows the caretaker to make a full of ‘‘sufficient age and capacity’’ to be incentives to place children in non- emotional commitment to the child. able to understand the decision that is preferred placement families and • The proposed provision violates being made. removes rewards for non-compliance). precedent of a majority of State courts • The proposed provision is that have held they may consider the Comment: Several commenters necessary to encourage diligent searches Indian child’s attachment to, or bond suggested that the rule should provide to identify preferred placements. with, current caregivers and the amount that Tribal approval of the non-preferred • The proposed provision supports of time the child has been with placement constitutes good cause the intent of ICWA to return a child to caregivers. because the rule should defer to a biological family even where there is a • The proposed provision will Tribe’s determination that a non- psychological parenting relationship increase resistance to ICWA. preferred placement is in the child’s between the placement family and • The proposed provision encourages best interests. child, and that Congress arrived at this breaking of ordinary bonds. Response: The statute provides that approach after debate and ample • The proposed provision will not the preference of the parent or child testimony, including significant address historical trauma. should be considered and allows the testimony from mental health • The proposed provision places Tribe to express its preference by practitioners. Tribal interests above the child’s establishing a different order of • The proposed provision recognizes interests. preference by resolution. 25 U.S.C. that the long-term best interests Some commenters neither fully 1915(c). In addition, the statute and the protected by ICWA outweigh short-term supported nor fully opposed the rule make clear that a foster home impacts of breaking an ordinary bond. provision prohibiting consideration of specified by the Indian child’s Tribe is • Comparing emotional ties between ordinary bonding as good cause. A few a preferred placement. FR § 23.131(b)(2). the foster family and child to those with agreed that a prolonged placement

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arising out of a violation of ICWA identify preferred placements. While it because the placement preferences should not constitute good cause, but can be difficult for children to shift from apply even when no agency is involved. expressed concern that the provision one custody arrangement to another, Response: The final rule deletes could preclude a court’s consideration one way to limit any disruption is to reference to ‘‘applicable agency’’ in this of the likelihood of severe emotional mandate careful adherence to section. trauma to a child from a change in procedures that minimize errors in Comment: A few commenters placement under any circumstance, temporary or initial custodial suggested clarifying that a ‘‘diligent placing an unnecessary constraint on placements. It can also be beneficial to search’’ for a preferred placement must State courts and disserving Indian facilitate connections between an Indian be conducted, rather than requiring children. One commenter stated that child and potential preferred ‘‘active efforts’’ because ‘‘active efforts’’ bonding should not be considered, placements. For example, if a child is in is a term of art with specific statutory whether ordinary or extraordinary. a non-preferred placement due to application. Some commenters suggested alternative geographic considerations and to Response: The final rule clarifies that approaches to the provision prohibiting promote reunification with the parent, a diligent search must be conducted, consideration of ordinary bonding as the agency or court should promote rather than using the phrase ‘‘active good cause. connections and bonding with extended efforts,’’ because the statute uses the Response: The final rule provides that family or other preferred placements phrase ‘‘active efforts’’ in a different a court may not consider, as the sole who may live further away. In this way, context. See FR § 23.132(c)(5). basis for departing from the preferences, the child has the opportunity to develop Comment: A commenter objected to ordinary bonding or attachment that additional bonds with these preferred the language in PR § 23.131(c)(4) stating flows from time spent in a non-preferred placements that will ease any that a placement is not ‘‘unavailable’’ placement that was made in violation of transitions. (as a basis for good cause to depart from the placement preferences) if the ICWA. In response to commenters’ The comments reflected some placement conforms to the prevailing concerns, the final rule adjusts the confusion regarding what constitutes a social and cultural standards of the proposed provision regarding ‘‘ordinary ‘‘placement that does not comply with Indian community. The commenter bonding’’ as not being within the scope ICWA.’’ For clarity, the final rule stated that this language is not in ICWA of extraordinary physical, mental, or instead references a ‘‘violation’’ of and may lead to argument that good emotional needs. PR § 23.131(c)(3). The ICWA to emphasize that there needs to cause does not exist even where the proposed provision may have be a failure to comply with specific placement does not pass a background inappropriately limited court discretion statutory or regulatory mandates. The check, potentially violating ASFA, in certain circumstances. This is determination of whether there was a particularly the case, given the apparent which disqualifies people convicted of violation of ICWA will be fact specific ambiguity regarding the proposed certain crimes from serving as a and tied to the requirements of the provision’s reference to ‘‘placement[s] placement. This commenter asserted statute and this rule. For example, that do[ ] not comply with ICWA.’’ Id. that inability to pass ASFA or State failure to provide the required notice to The Department recognizes that the background check requirements is per the Indian child’s Tribe for a year, concepts of bonding and attachment can se good cause. have serious limitations in court despite the Tribe having been clearly Response: ICWA requires that the determinations. See e.g., Comments of identified at the start of the proceeding, standards for determining whether a Casey Family Programs, et al., at 6 n.9 would be a violation of ICWA. By placement is unavailable must conform (citing literature including David E. comparison, placing a child in a non- to the prevailing social and cultural Arrendondo & Leonard P. Edwards, preferred placement would not be a standards of the Indian community. See Attachment, Bonding, and Reciprocal violation of ICWA if the State agency 25 U.S.C. 1915(d). Nothing in the rule Connectedness, 2 J. Ctr. for Fam. Child. and court followed the statute and eliminates other requirements under & Cts. 109, 110–111 (2000) (discussing applicable rules in making the State or Federal law for determining the the ways that bonding and attachment placement, including by properly safety of a placement. theory ‘‘may mislead courts’’)). The determining that there was good cause Department also recognizes that, as the to deviate from the placement f. Other Suggestions Regarding Good Supreme Court has cautioned, courts preferences. Cause To Depart From Placement should not ‘‘ ‘reward those who obtain Comment: A few commenters stated Preferences custody, whether lawfully or otherwise, that the rule eradicates courts’ ability to Comment: One commenter stated that and maintain it during any ensuing (and find ‘‘good cause’’ to deviate from the the rule should provide that ‘‘good protracted) litigation,’ ’’ Holyfield, 490 placement preferences by requiring that cause’’ to deviate from the placement U.S. at 54 (citation omitted), by treating only qualified expert witnesses can preferences exists if serious emotional relationships established by temporary, demonstrate good cause based on or physical damage to the child is likely non-ICWA-compliant placements as ‘‘extraordinary bonding.’’ to result, to follow the line of reasoning good cause to depart from ICWA’s Response: The final rule does not in section 1912(e) that uses that mandates. require testimony from a qualified standard for continued custody. The final rule, therefore, adjusts the expert witness to establish a good cause Response: The final rule provides that ‘‘ordinary bonding’’ provision, stating determination based on the the extraordinary physical, mental, or that ordinary bonding and attachment extraordinary physical, mental, or emotional needs of the child may be the that flows from length of time in a non- emotional needs of the child. See FR basis for a good cause determination. preferred placement due to a violation § 23.132(c). See FR § 23.132(c)(4). In addition, the of ICWA should not be the sole basis for final rule provides that the e. Unavailability of Placement as Good departing from the placement unavailability of a suitable placement Cause preferences. This provision addresses may be the basis for a good cause concerns that parties may benefit from Comment: One commenter supported determination. See FR § 23.132(c)(5). failing to identify that ICWA applies, PR § 23.131(c)(4) except for the Both of these provisions would allow a conduct the required notifications, or reference to ‘‘applicable agency’’ court to address the commenter’s

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concern about preventing serious • The ‘‘best interests of the child’’ 1. Petition To Vacate Adoption emotional or physical damage to a child. analysis is of paramount importance. Comment: Several commenters In addition, the final rule retains • The ‘‘best interests of the child’’ opposed PR § 23.132(a) allowing a final discretion for State courts to consider analysis is compatible with ICWA and decree of adoption to be set aside if the other factors when necessary. should be explicitly allowed because proceeding failed to comply with ICWA. 6. Placement Preferences Presumed To ICWA was not enacted to ignore the These commenters pointed out that Be in the Child’s Best Interest physical and emotional needs of section 1913(d) of the Act only allows children and that every child should Many commented on the intersection a collateral attack on an adoption decree have all factors considered for the best of a ‘‘best interests analysis’’ with if consent to the adoption was obtained possible outcome because not doing so ICWA’s placement preferences. A high- through fraud or duress, not if the would be treating them as possessions. level summary of these comments is proceeding failed to comply with ICWA, provided here. Several commenters • The ‘‘best interests of the child’’ while section 1914 allows for stated that a ‘‘best interest of the child’’ analysis is not different for Indian invalidation only of a foster-care analysis is not appropriate for Indian children. placement or termination of parental rights if the proceeding failed to comply children, for the following reasons. • Case law establishes that the child’s with ICWA. • ICWA compliance already best interests must be considered and presumptively furthers best interests of establishes that the child’s best interests Response: The final rule deletes ‘‘the the child and represents best practices should be considered in ‘‘good cause’’ proceeding failed to comply with in child welfare generally. determinations. ICWA’’ as a basis for vacating an adoption decree because FR § 23.136 • There is a movement in literature to • Not considering the child’s best implements section 1913(d) of the Act, replace the ‘‘best interest’’ consideration interest violates the constitutional rights altogether in favor of the least which is limited to invalidation based of the children and parents. detrimental among available alternatives on the parent’s consent having been for the child, to focus on causing no Response: As discussed above, ICWA obtained through fraud or duress. harm to the child, rather than an and this rule provide objective Comment: A commenter pointed out implication that courts or agencies are mandates that are designed to promote that PR § 23.133(a) refers generally to well-positioned to determine what is the welfare and short- and long-term ICWA being violated, but the statute and ‘‘best.’’ interests of Indian children. Congress PR § 23.133(b) both refer specifically to • ICWA was passed to overcome the enacted ICWA to protect the best violations of Sections 1911, 1912, or bias, often subconscious, and lack of interests of Indian children. However, 1913. knowledge about Tribes and Indian the regulations also provide flexibility Response: The final rule specifies the children, and leaving ‘‘best interests’’ to for courts to appropriately consider the appropriate sections of ICWA in FR be argued by individuals opposing particular circumstances of the § 23.137(a). ICWA’s preferences evades ICWA’s individual children and to protect those Comment: Several commenters stated purposes. The ‘‘best interests’’ analysis children. For example, courts do not that the two-year statute of limitations is inherently open to bias. need to follow ICWA’s placement should not apply to section 1914 actions • The ‘‘best interests of the child’’ preferences if there is ‘‘good cause’’ to to invalidate foster-care placements and analysis permits courts and agencies to deviate from those preferences. The termination of parental rights. Some ignore the placement preferences at ‘‘good cause’’ determination should not, commenters asserted that State statutes will. however, simply devolve into a free- of limitations should apply; others • The ‘‘best interests of the child’’ ranging ‘‘best interests’’ determination. stated that State statutes of limitations analysis is necessarily broader and Congress was skeptical of using ‘‘vague should not apply because it would richer for Indian children because it standards like ‘the best interests of the cause uncertainty and inconsistency. includes connection to Tribal child,’ ’’ H.R. Rep. No. 95–1386 at 19, One commenter suggested adding a community, identity, language and and intended good cause to be a limited statute of limitation of 90 days. A few cultural affiliation. exception, rather than a broad category commenters suggested establishing a • The ‘‘best interests’’ analysis is not that could swallow the rule. statute of limitations that allows minors appropriate in any determination of N. Post-Trial Rights and Recordkeeping three to five years after they turn age 18 ‘‘good cause’’ because ‘‘good cause’’ and to sue for violations of their rights under ‘‘best interest’’ appear in different parts The final rule describes requirements ICWA. of the statute, meaning Congress and standards for vacating an adoption Response: The final rule clarifies that carefully and expressly ‘‘cabined’’ each based on consent having been obtained the two-year statute of limitations does concept, and as such should be treated by fraud or duress. It also provides not apply to actions to invalidate foster- separately. clarification regarding the application of care placements and terminations of Several commenters suggested adding 25 U.S.C. 1914, and the rights to parental rights, by clarifying that FR language drawn from the Michigan information about adoptee’s Tribal § 23.136 applies only to invalidation of Indian Family Preservation Act on how affiliations, while removing certain adoptions based on parental consent to determine a child’s best interests. obligations the proposed rule imposed having been obtained through fraud or Other commenters asked the on agencies. The final rule provides duress. If a State’s statute of limitations Department to keep the focus on the procedures for how notice of a change exceeds two years, then the State statute best interests of the children and in an adopted Indian child’s status is to of limitations may apply; the two-year opposed having no independent be provided, including provisions for statute of limitations is a minimum consideration of the best interests of the waiver of this right to notice. The final timeframe. See 25 U.S.C. 1913. The Indian child for the following reasons: rule also contains provisions regarding statute does not establish a statute of • The presumption that ICWA the transmittal of certain adoption limitations for invalidation of foster-care compliance is in the child’s best interest records to the BIA, and the maintenance placements and termination of parental is not always true. of State records. rights under section 1914, and the

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Department declines to establish one at another party’s rights. A few other rule add a minimum age for a child to this time. commenters stated that the rule be able to petition to invalidate an Comment: A few commenters noted purports to convey standing to those action because the statute does not that PR § 23.133 fails to provide the who do not have a personal stake in the provide a minimum age. The statute requirement in section 1916(a) that the controversy. These commenters claim allows an Indian child to petition, best interests of the child be considered there is no evidence Congress intended which necessarily means that someone before determining whether to return to grant the Department authority to with authority to act for the child may the child if the court invalidates an rewrite constitutional standing petition on the child’s behalf. See 25 adoption decree or adoptive couples requirements and the fundamental U.S.C. 1914. voluntarily terminate their parental principle of American jurisprudence Comment: One commenter suggested rights. that someone seeking relief must have adding ‘‘or was’’ to read ‘‘an Indian Response: Section 1916(a) addresses a standing. child who is or was the subject of any narrow set of circumstances: When an Response: The final rule does not action’’ to account for actions that adoption fails because the court dictate that a court must find that the occurred in the past. invalidates the adoption decree or the listed parties have constitutional Response: The final rule adds the adoptive couples voluntarily terminate standing; rather, it recognizes the requested clarification because it can be their parental rights. The statute categories of those who may petition. inferred from the statute that the action provides that, under this narrow set of The statutory scheme allows one party for foster-care placement or termination circumstances, the best interests of the to assert violations of ICWA of parental rights need not be in process child must be considered in requirements that may have impacted at the time the child petitions to determining whether to return the child other parties rights (e.g., a parent can invalidate the action. See FR to biological parent or prior Indian assert a violation of the requirement for § 23.136(a)(1). custodian. The regulation does not a Tribe to receive notice under section Comment: A State commenter address this narrow set of 1912(a)). There is no basis in the statute requested clarification of whether the circumstances. FR § 23.136(b) requires for the regulation to limit the parties’ ‘‘court of competent jurisdiction’’ may notice to the parent or Indian custodian opportunities for redress for violations be a Tribal court, district court, or of the right to petition for return of the of ICWA. Through section 1914, ICWA different court from where the original child, but the final rule does not set out makes clear that a violation of Sections proceedings occurred. the standard for determining whether to 1911, 1912, or 1913 necessarily impacts Response: The court of competent return the child to the parent’s or Indian the Indian child, Indian parent or jurisdiction may be a different court custodian’s custody. FR § 23.136(c) custodian, and the Indian child’s Tribe from the court where the original implements section 1913(d) of the Act, such that each is afforded a right to proceedings occurred. which provides that the court ‘‘shall’’ petition for invalidation of an action Comment: A State commenter return the child to the parent if it finds taken in violation of any of these requested clarification of whether the the parent’s consent was obtained provisions. The provision also makes ability to challenge the proceeding through fraud or duress. clear that one party cannot waive applies to the proceeding at issue or a another party’s right to seek to subsequent proceeding and stated that, 2. Who Can Make a Petition To invalidate such an action. Additionally, as written, it appears the adoption Invalidate an Action parties may have other appeal rights proceeding could be undone due to Comment: A few commenters under State or other Federal law in failures to follow ICWA in the requested changing ‘‘the court must addition to the rights established in underlying termination case. This determine whether it is appropriate to ICWA. commenter requested clarification that invalidate the action’’ to ‘‘the court must Comment: A commenter requested only the proceeding currently before the invalidate the action’’ in PR § 23.133. deleting from PR § 23.133(a)(2) ‘‘from court may be invalidated. These commenters stated that the plain whose custody such child was Response: The ability to petition to language of section 1914 does not allow removed’’ because it would prevent a invalidate an action does not necessarily for court discretion. These commenters noncustodial biological parent from affect only the action that is currently further asked how the court would petitioning to invalidate the action. before the court. For example, an action determine appropriateness and under Response: The final rule continues to to invalidate a termination of parental what standard of review. include the qualifying phrase ‘‘from rights may affect an adoption Response: 25 U.S.C. 1914 does not whose custody such child was proceeding. See, e.g., In re the Adoption require the court to invalidate an action, removed’’ because the statute includes of C.B.M., 992 N.E.2d 687 (Ind. 2013) but allows certain parties to petition for this phrase, authorizing parents or (where termination of parental rights invalidation. For this reason, the final Indian custodians ‘‘from whose custody has been overturned on appeal, ‘‘letting rule states that the court must determine such child was removed’’ the right to the adoption stand would be an whether it is appropriate to invalidate petition to invalidate an action. 25 overreach of State power into family the action under the standard of review U.S.C. 1914; FR § 23.137(a)(2). integrity’’); State ex rel. T.W. v. Ohmer, applicable under State law. See FR Comment: A commenter requested 133 S.W.3d 41, 43 (Mo. 2004) (ordering § 23.137. adding a guardian ad litem to the list of lower court to set aside adoption decree Comment: A few commenters persons in PR § 23.133(a) who may where parent has appealed termination supported PR § 23.133(c) as clarifying petition to invalidate an action. A decision). that the Indian child, parents, or Tribe commenter requested adding that the may seek to invalidate an action to child must be a minimum age to 3. Rights of Adult Adoptees uphold the political status and rights of petition to invalidate an action. Comment: A few commenters each child. One commenter stated that Response: The final rule does not add supported outlining post-trial rights to PR § 23.133(c) is important in that it a guardian ad litem to the list of persons protect adopted Indian children, Tribes, clarifies that certain provisions of ICWA who may petition to invalidate an action parents, and family members. A few cannot be waived because any party because the statute does not list this commenters opposed PR § 23.134(b) and may challenge based on violations of category of persons. Nor does the final (c) as undermining the established

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practice in some jurisdictions of Response: The final rule includes a the term ‘‘child’’ rather than ‘‘Indian opening adoption-related records for provision at FR § 23.71(b) that child.’’ Indian adoptees when they would incorporates the statute’s requirements Response: The final rule specifies otherwise be closed. These commenters for BIA assistance to adult adoptees. ‘‘Indian child.’’ See FR § 23.140(a). expressed concern that PR § 23.134(b) 4. Data Collection Comment: A few commenters and (c) could be interpreted to allow suggested adding that the States to keep records sealed. Comment: A few commenters documentation be sent to the child’s Response: The final rule addresses suggested minimizing non-preferred Tribe, in addition to BIA. section 1917 of the Act at FR § 23.138 placements by saying the placement Response: The statute, at section and addresses section 1951 at FR must be documented throughout the 1951(a), requires only that the State § 23.140. The rule clarifies that it is case. provide the Secretary with this addressing certain specific rights of Response: FR §§ 23.129(c) and information. adult adoptees to information on Tribal 23.132(c) require that the court’s good Comment: A few commenters affiliation, in accordance with the cause determination be on the record. opposed PR § 23.137, stating that the statute, rather than all rights of adult FR § 23.141 also requires that the record requirements for a single repository in adoptees. States may provide additional of placement include information each State and the seven-day timeframe rights. At FR § 23.71(b), the final rule justifying the placement determination. are beyond the requirements of § 1915(e) replaces the proposed text with This regulatory requirement ensures the and would be an administrative and language restating the Secretary’s duty statutory provision allowing the fiscal burden on States. A commenter under section 1951(b) of the Act. Department and Tribe to review State stated that the cost to courts in Comment: A commenter suggested placement records for compliance with relocating the approximate 1,123 files edits to PR § 23.134(b) and (c) to clarify the placement preferences is fulfilled. throughout 58 counties to a single that it is the court that must seek the See 25 U.S.C. 1915(e). location would be significant and assistance of BIA and communicate Comment: A State commenter disruptive. Some claimed it would be an directly with the Tribe’s enrollment requested clarification that the agency unfunded mandate. A few requested office. A few commenters opposed PR that places the child must maintain the clarifications on how the records must § 23.134 to the extent it shifts records. be maintained in a single location. A Response: FR § 23.141 clarifies that responsibility to the States, particularly commenter suggested a timeframe of 30 the State must maintain the records, but with regard to requiring agencies to days would be more appropriate. allows a State court or agency to fulfill communicate directly with Tribal Response: The final rule deletes the that role. enrollment offices. A few commenters Comment: A few commenters requirement for storing records of stated that PR § 23.134(c) should opposed PR § 23.136 to the extent it placement in a single repository, but include other offices designated by the duplicates obligations already assigned retains a timeframe. The statute Tribe, rather than just the Tribal to BIA under the current regulation at provides that the State must make the enrollment office. § 23.71. record available at any time upon the Response: The final rule deletes the Response: The commenters are correct request of the Secretary or the Indian provisions referenced by the that PR § 23.134 and PR § 23.136 child’s Tribe. See 25 U.S.C. 1915(e). A commenters. duplicated the content in 25 CFR 23.71 timeframe is appropriate to ensure that Comment: One commenter stated that to a large extent. The final rule the record is available upon request ‘‘at the rule should require disclosure of addresses these comments by keeping any time,’’ but the final rule ensures information to allow adult adoptees to those provisions that address BIA States have the flexibility to determine reunite with their siblings. responsibilities in FR § 23.71, and the best way to maintain their records Response: The final rule does not add moving those provisions that address to ensure that they can comply with the the requested requirement because it is State responsibilities to FR § 23.140. FR timeframe. In response to comments beyond the scope of the statute; § 23.71 keeps provisions in former about the reasonableness of the however, some States have registries § 23.71(b) governing BIA, with minor timeframe, the final rule extends the that allow individuals to obtain modifications for readability and to timeframe to 14 days, which will information on siblings for purposes of replace the reference to the BIA ‘‘chief generally allow two full working weeks reunification. Tribal enrollment officer’’ with a general to provide the record. See FR § 23.141. Comment: A few commenters stated reference to BIA. Other provisions at Comment: A commenter requested that the final adoption decree should former § 23.71(a) are contained in FR clarification of whether copies or the require adoptive parents to maintain ties § 23.140. original files must be maintained and to the Tribe for the benefit of the child Comment: Several commenters provided. or include Tribal affiliation in the supported the proposed data-collection Response: The regulation does not adoption papers. requirements as necessary to determine clarify whether the files must be Response: The final rule does not compliance with the Act. Some stated originals or may be copies because as include this requirement. The statute concern that the information is not long as the copies are true copies of the and the regulations, however, provide a currently being maintained and originals, there is no need to specify. range of provisions, including Sections suggested BIA conduct mandatory Comment: A commenter requested 1917 and 1951, which are focused on compliance checks on each State to clarification as to whether only court promoting the relationship between the determine record maintenance and records are within the regulation’s scope adoptee and the Tribe. availability. or if the regulation covers State agencies Comment: A few commenters noted Response: The regulation is intended or private adoption agencies. that the Act provides for BIA to assist to strengthen the effectiveness of States’ Response: FR § 23.141 directly adult adoptees in securing information implementation of this important addresses only court records because to establish their rights as Tribal provision. the court records must include all citizens, and suggested the rule add a Comment: One commenter noted that evidence justifying the placement provision to this effect. the first sentence of PR § 23.136(a) uses determination. See 25 U.S.C. 1915, FR

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§ 23.132. States may require that suggested the rule clarify that all non- membership. To the extent a party seeks additional records be maintained. identifying information will still be evidence in an action to invalidate a Comment: One commenter suggested disclosed, including for example, the placement in violation of Sections 1911, requiring States to submit annual name and Tribal affiliation of the Tribe 1912, 1913, or 1915, the party would be reports assessing compliance with the and the identity of the court or agency able to seek that information from the regulations. Other commenters with relevant information. The State and through discovery. suggested BIA work closely with the commenter also suggests the adoptive O. Effective Date and Severability U.S. Department of Health and Human parents’ identities may be disclosed. Services to encourage broader data Response: FR § 23.71(a) implements The final rule includes a new section, collection in AFCARS reporting and section 1951(a) of the Act, providing a FR § 23.143, that provides that the enforcement. A Tribal commenter stated role for the Secretary to provide provisions of this rule will not affect a that there are currently no reliable data information as may be necessary for the proceeding under State law for foster- sources for information on Indian enrollment of an Indian child in the care placement, termination of parental children in State care and, without Tribe. rights, preadoptive placement, or accurate numbers, it is difficult to Comment: A commenter suggested adoptive placement which was initiated ascertain with any precision the needs that one parent’s affidavit for anonymity or completed prior to 180 after the of Indian children in any State. should not extend anonymity to the publication date of the rule, but will Response: The final rule does not other parent. apply to any subsequent proceeding in requiring annual reporting. The Response: An affidavit of one parent the same matter or subsequent Department is working closely with the would not extend anonymity to the proceedings affecting the custody or Department of Health and Human other parent. placement of the same child. This is Services on data collection regarding Comment: A commenter suggested an drawn from the language of 25 U.S.C. ICWA. See AFCARS Proposed Rule at affidavit requesting anonymity should 1923. 81 FR 20283 (April 7, 2016). not preclude disclosure of the adoptive This provision ensures that ongoing Comment: A commenter suggested the parents’ identities. proceedings are not disrupted or rule should address the records filed Response: The Act only addresses an delayed by the issuance of this rule and with the Secretary, including who may affidavit of anonymity for the biological that there is an orderly phasing in of the access them, the procedure for gaining parent or parents. See 25 U.S.C. 1951(a). effect of the rule. See H.R. Rep. No. 95– Comment: A commenter suggested PR access, and the timeframe for the 1386, at 25. Standards affecting pending § 23.136 should provide for notification Secretary to respond to requests for proceedings should not be changed in of foster and adoptive parents of their access. midstream. This could create confusion, right and the right of their adoptive Response: BIA has maintained a duplication, and delays in proceedings. child upon reaching age 18 to apply for central repository of adoption decrees And, by providing 180 days from the the adoption records held by the and responds to requests for access. The date of issuance for the rule to be fully final rule, at FR § 23.71(b), incorporates Secretary. Response: Neither the statute nor the effective, all parties affected—States section 1951(b) of the Act, to clarify that courts, State agencies, Tribes, private someone can request the records from final rule require the Secretary to proactively reach out to adoptive and agencies, and others—have ample time the Secretary. to adjust their practices, forms, and Comment: A commenter suggested foster parents and adopted children guidance as necessary. adding a mechanism for securing the regarding their records; rather, the Act information required by PR § 23.136(a) at section 1917 and the final rule FR § 23.144 states the Department’s when a State court fails to comply, for provide that the State court provides intent that if some portion of this rule example, by requiring them to provide such information upon application. is held to be invalid by a court of the information to the Secretary. Comment: The commenter suggested competent jurisdiction, the other Response: FR § 23.140(a) implements that, when there is an affidavit for portions of the rule should remain in section 1951(a) of the Act which anonymity, the Secretary notify the effect. The Department has considered establishes a State court responsibility biological parent of the request and whether the provisions of the rule can to provide information to the Secretary. allow them the opportunity to withdraw stand alone, and has determined that This provision was formerly located at anonymity if desired. they can. For example, the agency has 25 CFR 23.71(a). Response: The parent may have the considered whether particular Comment: A commenter suggested right to withdraw or rescind an affidavit provisions that are intended to be that the ‘‘good cause’’ basis stated on the for anonymity under State law; the followed in both voluntary and record should be reported in the State parent should contact the State court or involuntary proceedings should remain database and reported to Tribes and agency for directions. valid if a court finds the provision adoptees. Comment: A commenter suggested invalid as applied to one type of Response: The regulation requires that adding a section to authorize release of proceeding, and has concluded that they the State record the basis for ‘‘good records maintained by the Secretary to should. The Department has also cause’’ to deviate from the preferred any Indian child, parent or Indian considered whether the particular placements (see FR § 23.129(c)); this custodian, or child’s Tribe upon a requirements of the rule (e.g., information and evidence must be showing that the records are needed as requirements for notice, active efforts, included in the court record. evidence in an action to invalidate a consent, transfer, placement Comment: A commenter suggested placement in violation of Sections 1911, preferences) may each function that PR § 23.136 clarify that an affidavit 1912, 1913 or 1915. independently if other requirements requesting anonymity does not preclude Response: Section 1951 of the Act were determined to be invalid. The disclosure of identifying information to provides that the Secretary may release Department has determined that they the Tribe for the purpose of approving such information as may be necessary can. an application for Tribal membership, for the enrollment of an Indian child Comment: One commenter stated that which the Tribe undertakes in its . . . or for determining any rights or the ICWA regulations should be sovereign capacity. The commenter also benefits associated with that retroactive to include all Indian

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children currently involved in ICWA through 1917 and Sections 1920 through protection to the rights of the parent or cases. 1922 are mandatory standards that Indian custodian of an Indian child than Response: As discussed above, the supplant State law. Other commenters the rights provided under ICWA, as final rule includes a provision that requested clarification that minimum interpreted by this rule, State law will mirrors 25 U.S.C. 1923, providing none Federal standards do not supplant State still apply. See 25 U.S.C. 1921. of the provisions of this rule will affect laws and regulations and Tribal-State 3. Time Limits and Extensions a proceeding which was initiated or agreements applying standards beyond completed prior to 180 days from the the minimum Federal standards, and Comment: One commenter stated that date of issuance. that State law and Tribal-State ICWA section 1912(a) allows ‘‘up to 20 agreements may expand upon or clarify days’’ whereas PR § 23.111(c)(4)(v) adds P. Miscellaneous ICWA consistent with the statute. A a burden of stating a specific number of 1. Purpose of Subpart commenter recommended stating that days, and the regulation should mirror the minimum Federal Standards the Act because it is difficult to obtain Comment: A few commenters preempt State laws that directly conflict continuances. supported PR § 23.101 and especially with the Federal standards and do not Response: FR § 23.111(c)(4)(v) deletes supported reiterating that the Indian provide heightened protections. the requirement to specify a number of canons of construction are to be used Response: Congress established days and now reflects the statutory when interpreting ICWA. A few minimum Federal standards for the language allowing ‘‘up to 20 days.’’ commenters suggested explaining in PR removal of Indian children from their Other provisions also now reflect that § 23.101, for the general public, that families and the placement of such the extension may be ‘‘up to an ICWA is not a race-based preference, but children in foster or adoptive homes additional 20 days.’’ is a political decision because of the which will reflect the unique values of Comment: One commenter suggested government-to-government relationship Indian culture. 25 U.S.C. 1902. imposing timeframes on States for between Tribes and the Federal Congress’s clear intent in ICWA is to providing notice to Tribes. Government. displace State laws and procedures that Response: To promote the statute’s Response: The Department agrees that are less protective. See, e.g., In re intent, FR § 23.111(a) adds that the State statutes are to be liberally construed to Adoption of M.T.S., 489 NW. 2d 285, must ‘‘promptly’’ provide notice to the benefit of Indians but determined it 288 (Minn. Ct. App. 1992) (ICWA Tribes. was not necessary to reiterate that canon preempted Minnesota State law because Comment: A commenter suggested here. Further, ICWA is based on an State law did not provide higher splitting PR § 23.111(h), regarding time individual’s political affiliation with a standard of protection to the rights of periods, into two subsections, one to Tribe. the parent or Indian custodian of Indian address involuntary placements and one Comment: A few commenters child). By establishing ‘‘minimum’’ to address termination of parental suggested strengthening the provision standards for removal and placement of responsibilities, and adding that stating that ICWA establishes minimum Indian children, Congress made clear findings and orders at involuntary Federal standards. These commenters that it was not preempting the entire placement proceedings are not binding suggested adding reference to the field of child-custody or adoption law as on parties who did not receive notice national policy is that these standards to Indian children, including all State but should have, and that courts will define the best interests of Indian laws that provide greater protection to make diligent efforts to ensure timely children. such children than those established by notice. Response: The statement that ICWA ICWA. See e.g., H.R. Rep. No. 95–1386, Response: The statute and regulation establishes minimum Federal standards at 19. ICWA specifically provides that, provide a mechanism for addressing is sufficient. Congress enacted ICWA to where State or Federal law provides a instances where parties who did not protect the best interests of Indian higher standard of protection to the receive notice but should have can seek children. rights of the parent or Indian custodian to invalidate the action, by filing a 2. Interaction With State Laws of an Indian child than the rights petition under section 1914 of the Act. provided under ICWA, the State or See FR § 23.137. Comment: A few commenters stated Federal court shall apply the State or Comment: A few commenters that PR § 23.105, providing that if Federal standard.’’ 25 U.S.C. 1921. suggested that timeframes longer than applicable State law provides a higher Comment: A commenter suggested those set out in PR § 23.112 are standard of protection, then the State deleting ‘‘in which ICWA applies’’ from appropriate in Alaska, where a majority court must apply that standard, should PR § 23.105(a) because ICWA is of villages are remote and subject to specify that if the State imposes applicable to all child-custody extreme weather conditions. sanctions, that constitutes a higher proceedings, so this phrase is redundant Response: The timeframes in FR standard of protection. and adds confusion. § 23.112 are established by statute in Response: It is unclear what the Response: The final rule deletes the section 1912(a). The minimum commenters mean by ‘‘sanctions.’’ phrase ‘‘and are applicable in all child- timeframes are to ensure that the ICWA provides that, where State or custody proceedings . . .’’ because FR parents or Indian custodians, and Indian Federal law provides a higher standard § 23.103 addresses applicability. child’s Tribe have sufficient advance of protection to the rights of the parent Comment: A few commenters stated notice and time to prepare for a or Indian custodian of an Indian child that the new regulations conflict with proceeding. State courts have discretion than the rights provided under [ICWA], various judicial decisions and asked to allow for more time. the State or Federal court shall apply whether the regulations will supersede Comment: A few commenters the State or Federal standard. 25 U.S.C. existing case law. expressed their support for PR 1921. The final rule is designed to Response: The regulations are § 23.112’s timeframes as key reflect that requirement. intended to provide a binding, accountability mechanisms. One Comment: One commenter stated that consistent, nationwide interpretation of commenter stated that additional the regulation should emphasize that the minimum requirements of ICWA. If extensions of time should not be ICWA’s provisions in Sections 1911 State law provides a higher standard of allowed in PR § 23.112(a) unless it is for

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good reason (e.g., deployment in the commenter also noted that the ruling to evade ICWA. A few military). Another suggested a good proceedings are closed, confidential commenters stated that the rule should reason would be to allow for a child’s proceedings and the court would be clarify that the Adoptive Couple ruling participation. unable to monitor who was present if should not be applied as broadly as the Response: The final rule does not alternative methods were allowed. Alaska Supreme Court applied it in impose restrictions on additional Response: Several courts allow judges Tununak II, in which the Alaska extensions because the Act does not to determine credibility by phone or Supreme Court stated that the provide any parameters for additional video, including in criminal grandmother must have filed a formal extensions, thereby leaving such proceedings. The Department notes that adoption petition to enjoy the additional extensions to the discretion requesting statements under oath, even placement preference in an involuntary of State courts. by teleconference, as to who is present proceeding. Several commenters stated Comment: One commenter requested may provide sufficient safeguards to that the proposed rule is contrary to the clarification in PR § 23.112(b) as to how maintain control over who is present on Supreme Court’s ruling in Adoptive many times a party may ask for an the teleconference for the purposes of Couple. additional 20 days to prepare, and confidentiality. Response: Adoptive Couple addresses whether this is for each ‘‘proceeding’’ or Comment: One commenter suggested a specific individual factual scenario. each ‘‘hearing.’’ adding Skype as an example of an The regulations do not explicitly Response: The parent, Indian alternative method. address the Adoptive Couple holding custodian, and Indian child’s Tribe are Response: A service such as Skype because the regulation governs entitled to one extension of up to 20 would be included in ‘‘other methods.’’ implementation of ICWA generally. days for each proceeding. As discussed Comment: A few commenters Comment: A few commenters above, any extension beyond the initial requested adding parents, Indian suggested addressing the holding in extension up to 20 days is subject to the custodians, presumed parents, Indian Tununak II, to provide that in an judge’s discretion. children, and qualified expert witnesses involuntary proceeding, ICWA’s to the list of those who may participate placement preferences apply without 4. Participation by Alternative Methods by alternative methods. regard to whether a preferred individual (Telephone, Videoconferencing, etc.) Response: The final rule allows for has come forward, sought to adopt, or Comment: A few commenters participation by alternative methods filed a formal adoption petition. suggested that the provision located generally, without specifying who may Commenters noted that, otherwise, the throughout the proposed rule allowing so participate. holding in Tununak II makes it harder for participation by alternative methods Comment: A few commenters stated for preferred parties to adopt by be moved into a separate section, that the rule should specify that the imposing procedural burdens. Another applicable to all stages, instead of State may not charge fees for commenter stated the rule should repeating the provision throughout the participation by alternative methods, expressly provide that preferred parties rule. and noted that some courts are requiring need not have sought to adopt the child Response: The final rule consolidates fees of as much as $85 per hearing and in order to be eligible as a placement, provisions on alternative methods of continuing the hearing until the fees are because ICWA does not require formal participation into one section at FR paid. The commenters state that such attempts to adopt. § 23.133. fees are prohibitive for Tribes and Response: The Department Comment: Many commenters families. recommends that States provide clear supported the provisions throughout the Response: This is not addressed in the guidance to preferred placements on regulations for the court to allow proposed or final rule. However, in how to assert their rights under ICWA alternative methods of participation in March 2016, the Department of Justice and that States should work to eliminate State proceedings. Commenters noted issued a Dear Colleague letter to State obstacles to preferred placements doing that Tribes have citizens living in many and local courts regarding their legal so. For example, the State of Alaska States and allowing participation by obligations (under the U.S. Constitution issued an emergency regulation phone or video allows Tribes and all and/or other Federal Laws) with respect following the ruling in Tununak to stakeholders to participate when they to the enforcement of fines and fees. consider certain actions a proxy for a are unable to travel or appear, whether States should review the letter as they formal petition for adoption. See Alaska due to financial constraints, distance, or consider the appropriateness of fees in Admin. Code tit. 7 § 54.600 (2015). otherwise. Several commenters this context. 6. Enforcement suggested the rule require the court to 5. Adoptive Couple v. Baby Girl and allow alternative methods of Comment: Multiple commenters Tununak II participation, rather than making it asked how the regulations will be discretionary, because the burden on Comment: Many commented on how enforced or requested including an States to allow such participation is low the rule should be interpreted in light of enforcement mechanism. Some and the rights protected by allowing the Supreme Court’s decision in suggested various enforcement alternative methods of participation are Adoptive Couple v. Baby Girl. Some mechanisms, such as imposing civil or important. One suggested the court must commenters stated that the regulations criminal penalties or sanctions for allow it if it has the capability. should explicitly address the Adoptive agency and court noncompliance or Response: The final rule retains the Couple holding in various ways. For tying compliance to State or Federal word ‘‘should’’ rather than making the example, several requested the rule funding. Commenters stated that such provision mandatory. clarify that the decision should not be penalties would better promote Comment: One State commenter applied outside of the private adoption compliance with ICWA and the final stated that alternative methods of context and to provide guidance on how rule. One commenter noted their participation should not be available for it should be implemented to better serve experience in hearing excuses for testimony because the witness must be Native children, families, and Tribes. A noncompliance because there are no in person for the court to make few commenters stated that, without consequences for failure to comply with credibility determinations. This such guidance, courts will use the ICWA and, therefore, little incentive to

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comply. Commenters had several but does not elaborate on how to from the State index for crimes if the additional suggestions for improving increase the availability of such crime was committed over five years monitoring and compliance with ICWA. placements. The Department ago, because States are refusing to place Response: The final rule clarifies the nevertheless encourages States and children with Indian relatives who are right of particular parties to seek to Tribes to collaborate to increase the in the index. invalidate a foster-care placement or availability of Indian foster homes. Response: ICWA does not address termination of parental rights based on Organizations such as the National restrictions on placements due to past certain violations of ICWA. FR § 23.137. Resource Center for Diligent criminal convictions. The final rule does not expressly Recruitment at AdoptUSKids provide Comment: A few commenters address other enforcement mechanisms tools and resources for recruiting Indian suggested the rule should provide for that may be available to the Federal homes. See, e.g., National Resource legal representation of Indian children government or other parties. Center for Diligent Recruitment, For through a guardian ad litem or Tribes: Tool and Resources (last visited equivalent to ensure the child’s 7. Unrecognized Tribes Apr. 27, 2016), http://www.nrcdr.org/ viewpoint is considered. Comment: A few commenters noted for-tribes/tools-and-resources. Response: ICWA addresses legal that some Indian Tribes are not federally representation of Indian children in recognized and that the rules leave 9. Other Miscellaneous section 1912(b). those Tribes in danger of losing their Comment: A commenter suggested Comment: Several commenters stated children by addressing only children of adding ‘‘local’’ to PR § 23.104(c), so it that attorneys should be appointed to federally recognized Indian Tribes. states that assistance may be sought represent parents and extended family These commenters assert that the rule ‘‘from the BIA local, Regional Office members as a matter of indigenous should apply to children of non- and/or Central Office.’’ rights. federally recognized Tribes, including Response: The final rule makes this Response: ICWA states that the parent but not limited to State-recognized addition for clarification at FR or Indian custodian has the right to Tribes. § 23.105(c). court-appointed counsel in an ICWA Response: The statute defines ‘‘Indian Comment: A few commenters proceeding. See 25 U.S.C. 1912(b). Tribe’’ as federally recognized Tribes; expressed concern that biological Comment: A commenter stated that therefore, the regulations address parents use ICWA as a tool to disrupt the regulations impermissibly attempt to children who are members of federally the child’s placement. One commenter shift Federal responsibility to the State recognized Tribes, or who are eligible stated that if a child has been in a home courts and agencies. for membership in a federally for six months or more, they should not Response: ICWA establishes recognized Indian Tribe and whose be forced to leave unless abuse is a minimum standards to be applied in parent is a member of a federally factor. State child-custody proceedings. The recognized Indian Tribe. See 25 U.S.C. Response: ICWA is designed to final rule is consistent with ICWA, and 1903(8). prevent the breakup of the Indian family elaborates on these minimum standards. and thereby focuses on maintaining the It does not shift Federal responsibilities 8. Foster Homes biological parents (or Indian custodian) to State courts and agencies. Comment: Several commenters had with the Indian child, rather than the Comment: Several commenters suggestions for increasing the bond between the foster parents and the suggested making all provisions of the availability of Indian foster homes, Indian child. Biological parents may rule mandatory, rather than using the including comments that the rule avail themselves of their rights under word ‘‘should.’’ should: ICWA and reunification with the Response: The final rule generally • Require States to work with Tribes biological parents or a change in uses mandatory language, as it and families to break down obstacles to placement may be appropriate even represents binding interpretations of make it easier and faster to license after many months or years, depending Federal law. In a few instances, the Indian foster homes and to facilitate on the circumstances (as is true for non- Department did not use mandatory funding of those homes; Indian children as well). language, such as to indicate the best • Require acceptance of Tribal Comment: One commenter suggested means of compliance with another licensure of foster homes; clarifying how immediate termination- statutory or regulatory requirement. • Exclude individuals who are of-parental-rights proceedings in cases Comment: A commenter stated that preferred placements from requirements involving shocking and heinous abuse the regulations should encourage States, necessary to become a foster home or previous terminations as to other in coordination with Tribes, to advance because they create barriers for Indian children should be handled to comply ICWA implementation beyond what is families; with ICWA. required by the regulations, to ensure • Require each State social services Response: ICWA does not allow for that the ‘‘minimum Federal standards’’ agency to publish its criteria to become ‘‘immediate termination of parental do not become the maximum standards. a licensed foster home; rights’’ because it requires certain One commenter suggested including • Require each State social services timeframes for notice of the standard forms to help guide States in agency to maintain a centralized registry proceedings. See 25 U.S.C. 1912(a). which ICWA is less frequently used, to containing all rejected foster-home Emergency removal and emergency help familiarize States with ICWA and applications for periodic review by placement may be appropriate for save time. The commenter suggested Federal officials; immediate action if the requirements of reviewing the forms at www.nd.gov/dhs/ • Eliminate State requirements that section 1922 of the Act are met, and the Triballiaison/forms. contradict traditional practices and child may be placed in foster care Response: The Department cause problems for Indian foster homes, pending the termination-of-parental- underscores that these regulations are such as the requirement for each child rights proceeding if the requirements of indeed minimum standards. The to have a separate bedroom. section 1912(e) of the Act are met. Department encourages States and Response: ICWA establishes Indian Comment: A few commenters stated Tribes to collaborate to advance ICWA foster homes as preferred placements, that Indian people should be removed implementation and suggests looking to

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some of the tools developed by States to concern that Tribes are seeking more Response: State law governs the aid in implementation of ICWA. For power through the regulations. standards and procedures for appointing example: Response: The Department has guardian ad litem. The Department • New York has published a State considered the substance of each encourages appointment of guardian ad guide to ICWA (see A Guide to comment and without presuming the litem with significant understanding of Compliance with the Indian Child commenters’ motivations. the Indian child’s culture. Welfare Act published by the New York Comment: A commenter suggested Comment: A commenter asserted that Office of Children and Family Services using ‘‘or’’ rather than ‘‘and/or’’ one of the greatest challenges State at http://ocfs.ny.gov/main/publications/ throughout the regulation. courts face is reconciling the ICWA pub4757guidecompliance.pdf); Response: The final rule continues to provisions with other Federal statutes • Washington has established a State use the term ‘‘and/or’’ in several places governing child-welfare matters, such as evaluation of ICWA implementation, for clarity. Title IV–E of the Social Security Act and which it performs in partnership with Comment: A commenter suggested suggests BIA and HHS work together to Tribes (see 2009 Washington State Tribes and birth parents enter into ensure there is no conflict. Indian Child Welfare Case Review at ‘‘Contract After Adoption’’ agreements Response: Interior and the https://www.dshs.wa.gov/sites/default/ whereby non-Indian adoptive parents Department of Health and Human files/SESA/oip/documents/Region agree to register the child with the Services are committed to working %202%20ICW%20CR%20report.pdf). Tribe, stating that these agreements have • together to ensure harmonious Michigan has established a ‘‘bench been productive and protective of rights. implementation of the various Federal card’’ as a tool for judges implementing Another commenter suggested requiring statutory requirements. ICWA and the State counterpart law (see adoptive parents to enter a cultural Comment: Many commenters noted 2014 Michigan Indian Family outreach program as defined by the the dire need for additional funding to Preservation Act (MIFPA) Bench Card Tribe, to ensure continued connection Tribes, preferred placements, and others (last visited Apr. 27, 2016), http:// that strengthens the culture. to better support ICWA implementation. courts.mi.gov/Administration/SCAO/ Response: This is beyond the scope of A few commenters stated that there OfficesPrograms/CWS/CWSToolkit/ this rule. should be enforcement to ensure any Documents/BC_ICWA_MIFPA.pdf) Comment: A commenter stated that ICWA funding provided to Tribes is • Several States have established State child-welfare agencies should used for that purpose. State-Tribal forums to discuss child- include input from Tribes in their plans welfare policy and practice issues (see for implementing ICWA. Likewise, a Response: While the final rule cannot Montana, North Dakota, Oklahoma, commenter stated that States and Tribes affect funding levels, the Department Oregon, Utah, and Washington). should join forces to look at early notes the importance of funding in • Several States have established intervention, prevention, and implementation. State-Tribal court improvement forums rehabilitative services to avoid ICWA Comment: Many commenters noted where court system representatives meet situations, and work together for the the dire need for ICWA training and regularly to improve cooperation good and welfare of our children. suggested requiring State social workers, between their jurisdictions (see Response: This is beyond the scope of attorneys, and judges to undergo California, Michigan, New Mexico, New this rule. The Department encourages training on ICWA. One commenter York, and Wisconsin). States to collaborate with Tribes on stated that education regarding legal, In addition, several non-governmental implementation of ICWA. social, historical, and ethical entities offer tools for ICWA Comment: A commenter suggested components of ICWA would strengthen implementation, such as the National BIA ask Tribes whether State courts and compliance. Other commenters Council of Juvenile and Family Court agencies complied with ICWA because suggested requiring non-Indian adoptive Justices, National Indian Child Welfare if BIA relies only on agency families to take certified training on the Association, and Native American documentation, it will not receive the history of Native Americans and issues Rights Fund. whole picture. This commenter concerning Tribes today. Comment: A few commenters stated provided an example of one State that Response: ICWA does not establish their concerns over comments provided claimed compliance but the Tribes in requirements for training, but the by adoption lawyers, stating that they the State disagree. Department notes the importance of are primarily concerned with making Response: This is beyond the scope of training in implementation. money from private adoptions of Indian this rule. V. Summary of Final Rule and Changes children. These commenters noted that Comment: A commenter stated that From Proposed Rule to Final Rule the private adoption industry profits in guardian ad litems should have the billions of dollars annually and significant understanding of indigenous The following table summarizes require fees for adopting Indian infants. cultures and traditions so they can changes made from the proposed rule to A few other commenters stated their better interface with the children. the final rule.

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Summary of final rule Proposed rule Final rule Summary of changes from proposed rule to (as compared to rule in final rule effect before this final rule)

23.2 Definitions ...... 23.2 Definitions ...... Added definitions for emergency proceeding, Added definitions for active efforts, continued hearing, Indian foster home, involuntary custody, custody, domicile, emergency pro- proceeding, proceeding, and voluntary pro- ceeding, hearing, Indian foster home, invol- ceeding. untary proceeding, proceeding, status of- Revised definitions of active efforts, child-cus- fenses, upon demand, and voluntary pro- tody proceeding, continued custody, domi- ceeding. cile, Indian child, Indian child’s Tribe, In- Revised definitions of child-custody pro- dian custodian, and upon demand. ceeding, extended family member, Indian Deleted definitions of imminent physical dam- child, Indian child’s Tribe, Indian custodian, age or harm and voluntary placement. parent, reservation, Secretary, and Tribal court. 23.11 Notice ...... 23.11 Notice ...... Revises current (a) to delete requirement to Restates current 23.11, but deletes the re- send a copy of the notice to BIA Central quirement to send a copy of the notice that Office. Clarifies that notice must include the goes to the BIA Regional Director to the information specified in 23.111. Clarifies BIA Central Office, and replaces ‘‘certified that certain BIA duties remain. Replaces mail’’ with ‘‘registered or certified mail.’’ Up- ‘‘certified mail’’ with ‘‘registered or certified dates information on where notice should mail.’’ Specifies where notice should be be sent. Moves provisions from § 23.11(b), sent. (d), (e) to FR § 23.111. N/A ...... 23.71 Recordkeeping Deletes provisions of current § 23.71(a) be- Revises current 23.71 to more closely match and information cause duplicative of § 23.140. Moves cur- section 1951(b) of the Act. availability. rent § 23.71(b) to (a) as part of non-mate- rial changes to restructure the section Revises 23.71(b) to more closely match sec- tion 1951(b) of the Act. Deletes reference to BIA Tribal enrollment officer because po- sition no longer exists. 23.101 What is the 23.101 What is the Deletes sentence on when the regulations New section. Establishes the purpose of the purpose of this sub- purpose of this sub- apply because FR § 23.103 addresses new subpart. part? part? when ICWA applies. 23.102 What terms 23.102 What terms Revises definition of ‘‘agency’’ ...... New section. Defines ‘‘agency’’ and ‘‘Indian do I need to know? do I need to know? organization’’ for the purposes of this sub- part only. 23.103 When does 23.103 When does Clarifies what types of proceedings ICWA New section. Delineates when ICWA’s re- ICWA apply? ICWA apply? does and does not apply to. Revises text quirements may apply and do not apply. addressing ‘‘existing Indian family’’ excep- Establishes that there is no exception to the tion. application of ICWA based on certain fac- Moves provisions regarding the requirement tors. to ask whether ICWA applies to FR Establishes that ICWA continues to apply § 23.107. Moves provision requiring treat- even if the child reaches the age of 18. ment of a child as an Indian child pending verification to § 23.107. Clarifies that if ICWA applies at the com- mencement of a proceeding, it continues to apply even if the child reaches age 18. N/A ...... 23.104 What provi- Adds a chart to clarify which type of pro- New section. Delineates what type of pro- sions of this subpart ceeding each rule provision applies to. ceeding the sections of the subpart apply apply to each type to. of child-custody pro- ceeding? 23.104 How do I con- 23.105 How do I No significant changes ...... New section. Establishes how to contact a tact a Tribe under contact a Tribe Tribe to provide notice or obtain informa- the regulations in this under the regula- tion or verification. subpart? tions in this sub- part? 23.105 How does this 23.106 How does Deletes provision regarding ICWA applica- New section. Specifies that the regulations subpart interact with this subpart interact bility because applicability is addressed in provide minimum Federal standards, and State laws? with State and Fed- 23.103. that more protective State or Federal laws eral laws? apply. 23.106 When does N/A ...... Deletes section ...... N/A. the requirement for active efforts begin?

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Summary of final rule Proposed rule Final rule Summary of changes from proposed rule to (as compared to rule in final rule effect before this final rule)

23.107 What actions 23.107 How should a Limits provision to standards applicable in New section. Establishes that State courts must an agency and State court deter- State-court proceedings. must ask as a threshold question at the State court under- mine if there is a Clarifies that inquiry is required in emer- start of a proceeding whether there is rea- take to determine reason to know the gency, involuntary, and voluntary pro- son to know the child is an Indian child. whether a child is an child is an Indian ceedings. Establishes that, if there is reason to know Indian child? child? Clarifies that if there is ‘‘reason to know’’ the the child is an Indian child, the State court child is an Indian child, this triggers certain must confirm the agency used due dili- obligations. gence to identify and work with Tribes to Deletes list of information that the court may obtain verification, and must treat the child require the agency to provide. as an Indian child unless and until it is de- Replaces ‘‘active efforts’’ to identify Tribes termined otherwise. Establishes what fac- with ‘‘due diligence’’ to identify Tribes. tors indicate a ‘‘reason to know.’’ Moves provision requiring treatment of the Establishes that a court and Tribe must keep child as an Indian child from proposed documents confidential if a consenting par- 23.103(d). ent requested anonymity in a voluntary pro- Adds to the list of factors providing ‘‘reason ceeding. to know’’ the child is an ‘‘Indian child’’ that the child is or has been a ward of Tribal court and that either parent or child pos- sesses a Tribal identification card, but re- moves residency on an Indian reservation or in a predominantly Indian community. Adds that, where anonymity is requested in voluntary proceedings, the Tribe must keep the information confidential. 23.108 Who makes 23.108 Who makes Adds that a Tribal determination of member- New section. Establishes that only the Tribe the determination as the determination as ship or eligibility may be reflected in facts may make determinations as to Tribal to whether a child is to whether a child is of evidence, such as Tribal enrollment doc- membership or eligibility, and that such de- a member of a a member, whether umentation. terminations may be reflected in docu- Tribe? a child is eligible for mentation issued by the Tribe. membership, or whether a biological parent is a member of a Tribe? 23.109 What is the 23.109 How should a Deletes provision requiring notification by New section. Incorporates statutory provi- procedure for deter- State court deter- agencies. sions for establishing the child’s Tribe. mining an Indian mine an Indian Clarifies process and considerations where Establishes that deference must be given to child’s tribe when the child’s Tribe when more than one Tribe is involved. Tribe in which the child is already a mem- child is a member or the child may be a Deletes requirement for notifying all other ber unless otherwise agreed to by the eligible for member- member or eligible Tribes that a particular Tribe was des- Tribes. ship in more than for membership in ignated as the child’s Tribe. Establishes that, where the child is a member one Tribe? more than one Deletes statement that a Tribe can designate in more than one Tribe or eligible for mem- Tribe? another Tribe to act as its representative. bership in more than one Tribe, the court must provide opportunity for the Tribes to determine which should be designated as the child’s Tribe. Establishes what the State court should con- sider in determining which has ‘‘more sig- nificant contacts’’ if Tribes are unable to reach an agreement. 23.110 When must a 23.110 When must a Adds that the provision is subject to agree- New section. Establishes that a State court State court dismiss State court dismiss ments between States and Tribes pursuant must determine its jurisdiction and when a an action? an action? to 25 U.S.C. 1919. Requires the Tribe be State court must dismiss an action expeditiously notified of the pending dis- Requires State court to ensure the Tribal missal and sent information regarding the court is expeditiously notified and sent in- child-custody proceeding. formation on the proceeding.

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Summary of final rule Proposed rule Final rule Summary of changes from proposed rule to (as compared to rule in final rule effect before this final rule)

23.111 What are the 23.111 What are the Limited to standards to be applied in State- New section. notice requirements notice requirements court proceedings. Establishes required contents of the notice. for a child-custody for a child-custody Clarifies that provision applies to involuntary Allows notice to be sent by certified or reg- proceeding involving proceeding involving foster-care-placement and termination-of- istered mail, as long as return receipt is re- an Indian child? an Indian child? parental-rights proceedings. quested. Adds ‘‘certified mail’’ as an option ...... Incorporates provisions of current 23.11. Incorporates additional information from cur- Incorporates statutory provision requiring rent 23.11 (e.g., maiden names, require- court to inform a parent or Indian custodian ment to keep confidential information in the who appears in court without an attorney of notice). certain rights. Requires a State court to Deletes provision stating that counsel is ap- provide language-access services as re- pointed only if authorized by State law. quired by Federal law. Deletes provision requiring a specific amount of additional time to be included in the re- quest. Clarifies language-access requirements. Re- moves provision addressing Interstate Compact on Placement of Children. Moves provision regarding no rulings occur- ring until the waiting period has elapsed to 23.112(a). 23.112 What time lim- 23.112 What time Reorganizes section. States that no pro- New section. Incorporates statutory prohibi- its and extensions limits and exten- ceeding can be held until at least 10 days tion on foster care or termination-of-paren- apply? sions apply? after the required notice is provided. Clari- tal-rights proceedings being held until cer- fies that extensions may be ‘‘up to’’ an ad- tain timelines are passed. ditional 20 days. Moves provision regarding alternative meth- ods of participation to 23.133. Clarifies that additional extensions of time may be granted. 23.113 What is the 23.113 What are the Adds that emergency removal/placement New section. Incorporates statutory limita- process for the emer- standards for emer- must terminate immediately when no tions on State emergency removals and gency removal of an gency proceedings longer necessary to prevent imminent emergency placements. Indian child? involving an Indian physical damage or harm. Establishes what a petition, or accompanying child? Clarifies what standards state court should documents, for emergency removal or apply in emergency proceedings involving emergency placement should include. an Indian child. Requires State court to determine at each Changes standard from whether emergency hearing whether the emergency removal or removal/placement is ‘‘proper’’ to whether it emergency placement is no longer nec- is ‘‘necessary to prevent imminent physical essary. damage or harm to the child.’’ Establishes a 30-day deadline by which Removes certain requirements on the agency emergency removal and emergency place- Clarifies that agency may terminate the emer- ment should end unless the court deter- gency removal/placement. mines that restoring the child to the parent Requires additional statements in the petition or Indian custodian would subject the child or accompanying documents. to imminent physical damage or harm, and Replaces provision requiring a hearing if the court cannot transfer jurisdiction to the emergency removal/placement is continued Tribe, and that it is not possible to initiate a for more than 30 days with a requirement child-custody proceeding defined in § 23.2. for a court determination that restoring the child to the parent or Indian custodian would subject the child to imminent phys- ical damage or harm, and the court cannot transfer jurisdiction to the Tribe, and that it is not possible to initiate a child-custody proceeding defined in § 23.2. Moves provision regarding alternative meth- ods of participation to § 23.133. 23.114 What are the 23.114 What are the Changes ‘‘reason to believe’’ to ‘‘reason to New section. Establishes that the State court procedures for deter- requirements for de- know’’ of an improper removal. must expeditiously determine whether there mining improper re- termining improper Changes ‘‘immediately stay the proceeding was an improper removal or retention moval? removal? until a determination can be made on the under certain circumstances. question of improper removal’’ to ‘‘expedi- Requires the child to be returned immediately tiously determine whether there was im- to parents if there has been an improper proper removal or retention’’. removal or retention, unless it would sub- Changes standard from ‘‘imminent physical ject the child to substantial and immediate damage or harm’’ to ‘‘substantial and im- danger or threat of such danger. mediate danger or threat of such danger’’.

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Summary of final rule Proposed rule Final rule Summary of changes from proposed rule to (as compared to rule in final rule effect before this final rule)

23.115 How are peti- 23.115 How are peti- Adds that a request for transfer may be made New section. Establishes how petitions for tions for transfer of tions for transfer of at any stage of each proceeding. transfer may be made. proceeding made? a proceeding made? Clarifies that provision applies to foster-care and termination-of-parental-rights pro- ceedings. 23.116 What are the 23.117 What are the Changes ‘‘case’’ to ‘‘child-custody pro- New section. Establishes that a State court criteria and proce- criteria for ruling on ceeding’’. must transfer a proceeding unless one or dures for ruling on transfer petitions? Clarifies that a court must make a determina- more of the listed criteria are met. transfer petitions? tion when transfer is not appropriate. Moves provision for court to provide records related to the proceeding to Tribal court to § 23.119. 23.117 How is a de- 23.118 How is a de- Clarifies that the court ‘‘must not’’ consider New section. Prohibits State court from con- termination of ‘‘good termination of ‘‘good certain factors, rather than ‘‘may not’’. sidering certain factors in determining cause’’ not to trans- cause’’ to deny Combines the two separate lists of factors whether good cause to deny transfer ex- fer made? transfer made? that must not be considered into one list. ists. Clarifies when court must not consider wheth- Requires the basis for denying transfer to be er the proceeding is at an advanced stage. stated on the record or in a written opinion. Adds that the court must not consider wheth- er there have been prior proceedings in- volving the child for which no petition to transfer was filed. Changes the factor on whether the transfer ‘‘would’’ result in a change in placement to whether the transfer ‘‘could’’ affect place- ment. Changes the factor on the Indian child’s ‘‘contacts’’ to Indian child’s ‘‘cultural connections’’. Eliminates language regarding burden of proof. Requires the basis for denying trans- fer to be stated on the record or in a writ- ten opinion. 23.118 What happens 23.116 What hap- Splits the proposed section into two sections. New section. Establishes that the State court when a petition for pens when a peti- Deletes provision stating the notice should must ensure the Tribal court is promptly transfer is made? tion for transfer is specify how long the Tribal court has to notified in writing of a transfer petition. made? make its decision and requiring at least 20 New section. Establishes that State court 23.119 What hap- days for Tribal court to decide. should expeditiously provide the Tribal pens after a petition Adds that the State court ‘‘may request a court with all records related to the pro- for transfer is grant- timely response’’ regarding whether the ceeding if the Tribal court accepts transfer, ed? Tribe wishes to decline the transfer. and should coordinate the transfer with the Changes ‘‘promptly provide the Tribal court Tribal court. with all court records’’ to ‘‘expeditiously provide the Tribal court with all records re- lated to the proceeding.’’ Adds language regarding coordination be- tween State and Tribal courts. 23.119 Who has ac- 23.134 Who has ac- Deletes provision stating that decisions of the New section. Establishes rights of parties to cess to reports or cess to reports or court must be based only upon what is in examine records of proceedings. records? records during a the record. proceeding? 23.120 What steps 23.120 How does the Deletes provision directly imposing require- New section. Requires State court to con- must a party take to State court ensure ments on any party petitioning for foster clude that active efforts to avoid the need petition a State court that active efforts care or termination of parental rights; in- to remove the Indian child from his or her for certain actions in- have been made? stead requires the court to conclude that parents or Indian custodian were made volving an Indian active efforts have been made. prior to ordering an involuntary foster-care child? placement or termination-of-parental-rights. Requires documentation of active efforts. 23.121 What are the 23.121 What are the Clarifies that court ‘‘must not issue an order’’ New section. Establishes standards of evi- applicable standards applicable standards absent the appropriate standard of evi- dence in foster-care placement pro- of evidence? of evidence? dence, rather than ‘‘may not issue an ceedings and termination-of-parental-rights order.’’ proceedings. Changes standard from ‘‘seriously physical Requires the existence of a causal relation- damage or harm’’ to ‘‘serious emotional or ship between the particular conditions in physical damage.’’ the home and risk of serious emotional or Clarifies that a causal relationship is required physical damage to the child. for finding both clear and convincing evi- Establishes that, without the causal relation- dence and evidence beyond a reasonable ship, certain factors may not be the sole doubt. factor for meeting the standard of evi- States that none of the listed factors may be dence. the sole evidence without a causal relation- ship for both clear and convincing evidence and evidence beyond a reasonable doubt.

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Summary of final rule Proposed rule Final rule Summary of changes from proposed rule to (as compared to rule in final rule effect before this final rule)

23.122 Who may 23.122 Who may Clarifies that expert witness must be able to New section. Establishes that a qualified ex- serve as a qualified serve as a qualified testify regarding whether the Indian child’s pert witness should have knowledge of the expert witness? expert witness? continued custody by the parent or Indian prevailing social and cultural standards of custodian is likely to result in serious emo- the Indian child’s Tribe. tional or physical damage, and should also have specific knowledge of the prevailing social and cultural standards of the Indian child’s Tribe. Changes text from ‘‘specific knowledge of the child’s Indian Tribe’s culture and customs’’ to ‘‘knowledge of the prevailing social and cultural standards of the Indian child’s Tribe.’’ Eliminates the list of persons presumed to meet the requirements to two categories, and states instead that a person may be designated by the Indian child’s Tribe has having knowledge of the prevailing social and cultural standards of that Tribe. N/A ...... 23.123 ...... Reserved for numbering purposes ...... Reserved for numbering purposes. 23.123 What actions 23.124 What actions Deletes requirements directed at agencies .... New section. Requires State courts to ask must an agency and must a State court Clarifies that courts must ensure the party whether the child is an ‘‘Indian child’’ in vol- State court under- undertake in vol- seeking placement has taken all reason- untary proceedings. take in voluntary pro- untary proceedings? able steps to verify the child’s status.. Where there is reason to know that the child ceedings? Adds that State courts must ensure that the is an Indian child, requires State courts to placement complies 23.129–23.132. ensure the party seeking placement has taken all reasonable steps to verify the child’s status. Requires State courts to en- sure that the placement complies 23.129– 23.132. 23.124 How is con- 23.125 How is con- Clarifies that the consent must be made be- New section. Requires consent to voluntary sent obtained? sent obtained? fore a judge, not necessarily in court. termination of parental rights, foster-care Clarifies what the court must explain to the placement, or adoption to be in writing and parent/Indian custodian prior to accepting recorded before a court of competent juris- consent, and separates out the limitations diction. Requires court to explain the con- applicable to each type of proceeding. sequences of the consent in detail and cer- Clarifies that the court’s explanation must be tify that terms and consequences were ex- on the record and in English (unless plained in English or the language of the English is not the primary language of the parent or Indian custodian. parent/Indian custodian). Clarifies that consent need not be executed in open court but still must be made before a court of competent jurisdiction. 23.125 What informa- 23.126 What informa- Clarifies that the consent document must New section. Establishes required contents of tion should the con- tion must the con- contain the identifying Tribal enrollment consent document. sent document con- sent document con- number ‘‘where known’’ rather than ‘‘if tain? tain? any.’’ Adds that the parent or Indian custodian’s identifying information must be included, rather than definitively requiring their ad- dresses. 23.126 How is with- 23.127 How is with- Clarifies that a parent or Indian custodian New section. Establishes when and how con- drawal of consent drawal of consent to may withdraw consent to foster-care place- sent of foster-care placement may be with- achieved in a vol- a foster-care place- ment at any time. drawn. untary foster-care ment achieved? Removes requirement for the withdrawal to Establishes that the child must be returned to placement? be filed in the same court where the con- the parent or Indian custodian as soon as sent document was executed. practicable. Adds that State law may provide additional methods of withdrawing. Clarifies that the court must ensure the child is returned as soon as practicable. 23.127 How is with- 23.128 How is with- Separates out provisions for withdrawing con- New section. Establishes when and how con- drawal of consent to drawal of consent to sent to a termination of parental rights from sent to a termination of parental rights and a voluntary adoption a termination of pa- provisions for withdrawing consent to an an adoption may be withdrawn. achieved? rental rights or adoption. Establishes that the child must be returned to adoption achieved? Adds that withdrawal may be accomplished the parent or Indian custodian as soon as by testimony before the court. practicable. Adds that State law may provide additional methods of withdrawing. Changes ‘‘clerk of the court’’ to ‘‘the court.’’

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Summary of final rule Proposed rule Final rule Summary of changes from proposed rule to (as compared to rule in final rule effect before this final rule)

23.128 When do the 23.129 When do the Deletes provisions directed at agencies ...... New section. Establishes when placement placement pref- placement pref- Clarifies that the Tribe’s placement pref- preferences apply. erences apply? erences apply? erences may apply. Establishes that where a parent requests an- Clarifies that the court must consider re- onymity in a voluntary proceeding, the quests for anonymity in voluntary pro- court must give weight to this request. ceedings. Establishes that the placement preferences Moves provisions regarding documentation to must be followed unless a determination is 23.137 and 23.138. made on the record that good cause exists not to apply those preferences. 23.129 What place- 23.130 What place- Clarifies that the Tribe’s placement pref- New section. Lists the placement preferences ment preferences ment preferences erences may apply. in adoptive placements. apply in adoptive apply in adoptive Clarifies that the court ‘‘must’’ consider, Establishes that the Tribe may establish a dif- placements? placements? where appropriate, the preferences of the ferent order of preference by resolution. Indian child or parent. 23.130 What place- 23.131 What place- Clarifies that preferences apply to changes in New section. Lists the placement preferences ment preferences ment preferences placements. in foster- care and preadoptive placements. apply in foster care apply in foster-care Adds that sibling attachment as a consider- Establishes that the Tribe may establish a dif- or preadoptive place- or preadoptive ation in whether the placement approxi- ferent order of preference by resolution. ments? placements? mates a family. Requires the court to consider the preference Clarifies that the Tribe’s placement pref- of the Indian child or parent. erences may apply. Deletes the provision ‘‘whether on or off the reservation’’ as superfluous. Clarifies that the Tribe’s placement pref- erences established by order or resolution apply, so long as the placement is the least restricted setting appropriate to the par- ticular needs of the child. Requires the court to consider the preference of the Indian child or parent. 23.131 How is a de- 23.132 How is a de- Clarifies that the court must ensure reasons New section. Requires the court to ensure termination for ‘‘good termination for for good cause are on the record and avail- the reasons for good cause are on the cause’’ to depart ‘‘good cause’’ to de- able to the parties. record and available to parties. from the placement part from the place- Clarifies that a determination of good cause Establishes that the standard for proving preferences made? ment preferences must be justified on the record or in writing. good cause is clear and convincing evi- made? Changes the requirement for the court to dence. base good cause on the listed consider- Requires the good cause determination to be ations to a statement that the court in writing. ‘‘should’’ base good cause on the listed Establishes considerations that the good considerations. cause determination should be based on. Clarifies that the request of one or both par- Prohibits court from departing from the pref- ents may be a consideration for good erences based solely on ordinary bonding cause. or attachment that flowed from time spent Adds the presence of a sibling attachment as in a non-preferred placement that was a consideration for good cause. made in violation of ICWA. Adds ‘‘mental’’ needs of the child ...... Deletes the provision stating that extraor- dinary needs does not include ordinary bonding and attachment. Deletes requirement for qualified expert wit- ness. Changes unavailability of placements to un- availability of ‘‘suitable’’ placements, and clarifies that a placement may not be con- sidered ‘‘unavailable’’ if it conforms to pre- vailing social and cultural standards of the Indian community. Changes requirement for active efforts to find placements to a ‘‘diligent search’’ to find placements.. Adds that the court may not depart from the preferences based solely on ordinary bond- ing or attachment that flowed from time spent in a non-preferred placement that was made in violation of ICWA. N/A ...... 23.133 Should courts New section, incorporating provisions pre- New section. Establishes that courts should allow participation viously at PR §§ 23.112, 23.113, and allow, where they possess the capability, by alternative meth- 23.115. alternative methods of participation in pro- ods? ceedings.

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Summary of final rule Proposed rule Final rule Summary of changes from proposed rule to (as compared to rule in final rule effect before this final rule)

23.132 What is the 23.136 What are the Clarifies that this provision addresses New section. Establishes the procedure for procedure for peti- requirements for vacating an adoption (deletes ‘‘termination vacating an adoption based on consent tioning to vacate an vacating an adop- of parental rights’’). having been obtained through fraud or du- adoption? tion based on con- Deletes provision allowing an adoption de- ress. sent having been cree to be vacated based on the pro- obtained through ceeding failing to comply with ICWA. fraud or duress? 23.133 Who can 23.137 Who can Clarifies which sections of ICWA violations of New section. Establishes who can make a make a petition to in- make a petition to may justify a petition to invalidate an action. petition to invalidate an action based on a validate an action? invalidate an action Clarifies that an Indian child that was, in the violation of certain statutory provisions. for certain ICWA past, the subject of an action for foster violations? care or termination of parental rights may petition. Moves provision regarding alternative meth- ods of participation to § 23.133. 23.134 What are the 23.138 What are the Narrows section to apply only to rights to in- New section. Establishes how adult adoptees rights of adult rights to information formation about adult adoptees’ Tribal affili- may receive information on Tribal affili- adoptees? about adoptees’ ations. ations. Tribal affiliations? Deletes provision regarding BIA helping adoptee obtain information because an up- dated version of this provision is at § 23.71. Deletes provision about closed adoptions ...... Deletes provision about Tribes identifying a Tribal designee to assist adult adoptees. 23.135 When must 23.139 Must notice Clarifies that notice is required for Indian chil- New section. Requires notice to be given to notice of a change in be given of a dren who have been adopted. the child’s biological parents or prior Indian child’s status be change in an adopt- Deletes provision regarding change in place- custodians and Tribe of certain actions af- given? ed Indian child’s sta- ment. fecting an Indian child that has been adopt- tus? Adds that the notice must include the current ed. name and any former names of the Indian Establishes the required content for the no- child, and must include sufficient informa- tice. Establishes provisions allowing the tion to allow the recipient to participate in parent or Indian custodian to waive notice. any scheduled hearings. Adds provisions requiring the court to explain the consequences of a waiver of the right to notice and certify that the explanation was provided. Adds that a waiver need not be made in a session of court open to the public but must be before a court. Clarifies that a revocation of the right to re- ceive notice does not affect completed pro- ceedings. 23.136 What informa- 23.140 What infor- Clarifies applicability to voluntary and involun- Incorporates some of § 23.71(a) regarding tion must States fur- mation must State tary adoptions. State requirement to provide a copy of the nish to the Bureau of courts furnish to the Adds time period from 23.71 to provide that adoptive placement decree or order to BIA Indian Affairs? Bureau of Indian Af- State court must provide a copy of the within 30 days, along with certain informa- fairs? adoptive decree or order within 30 days. tion. Adds requirement from 23.71 that the child’s birthdate must be included in the informa- tion State courts provide to BIA. Incorporates provisions from 23.71(a) regard- ing marking information ‘‘confidential’’ and regarding State agencies assuming report- ing responsibilities. 23.137 How must the 23.141 What records Deletes requirement for State to establish a New section. Requires States to maintain State maintain must the State single location to maintain records. records of all placements made under the records? maintain? Increases the time in which the State must Act. make the record available to the Tribe or Establishes a minimum of what each record Secretary from 7 days to 14 days. must include. Adds requirement for the record to include document on efforts to comply with the placement preferences and the court order authorizing departure, if the placement de- parts from the placement preferences. Clarifies that records may be maintained by a State court or State agency. 23.138 How does the 23.139 How does the Adds the OMB Control number ...... New section. Addresses information collec- Paperwork Reduction Paperwork Reduc- tion requirements in the subpart. Act affect this sub- tion Act affect this part? subpart.

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Summary of final rule Proposed rule Final rule Summary of changes from proposed rule to (as compared to rule in final rule effect before this final rule)

NA ...... 23.143 How does ...... New section. States that the provisions of the this subpart apply to rule will not affect a child-custody pro- pending pro- ceeding initiated prior to 180 days after ceedings? publication date of the rule. NA ...... 23.144 What hap- ...... New section. States that if any portion of the pens if some portion rule is determined to be invalid by a court, of this part is held to the other portions of the rule remains in ef- be invalid by a court fect. of competent juris- diction?

VI. Procedural Requirements affected by the rule will not be governments or the private sector. A significant because of the total economic statement containing the information A. Regulatory Planning and Review impact of this rule’s requirements on required by the Unfunded Mandates (E.O. 12866 and 13563) any given entity is likely to be limited Reform Act (2 U.S.C. 1531 et seq.) is not Executive Order (E.O.) 12866 provides to an order of magnitude that is minimal required. that the Office of Information and in comparison to the entity’s annual E. Takings (E.O. 12630) Regulatory Affairs (OIRA) at the Office operating budget. The Department’s of Management and Budget (OMB) will detailed review of the potential Under the criteria in Executive Order review all significant rules. OIRA has economic effects resulting from new 12630, this rule does not affect determined that this rule is not regulatory requirements is available individual property rights protected by significant. upon request. the Fifth Amendment nor does it E.O. 13563 reaffirms the principles of involve a compensable ‘‘taking.’’ A E.O. 12866 while calling for C. Small Business Regulatory takings implication assessment is improvements in the nation’s regulatory Enforcement Fairness Act therefore not required. system to promote predictability, to This rule is not a major rule under 5 F. Federalism (E.O. 13132) reduce uncertainty, and to use the best, U.S.C. 804(2), the Small Business most innovative, and least burdensome Regulatory Enforcement Fairness Act. Under the criteria in Executive Order tools for achieving regulatory ends. The The rule does not have an annual effect 13132, this rule does not have sufficient E.O. directs agencies to consider on the economy of $100 million or Federalism implications to warrant regulatory approaches that reduce more. The rule’s requirements will not preparation of a Federalism summary burdens and maintain flexibility and result in a major increase in costs or impact statement. The Department freedom of choice for the public where prices for consumers, individual carefully reviewed comments regarding these approaches are relevant, feasible, industries, Federal, State, or local potential Federalism implications and and consistent with regulatory government agencies, or geographic determined that this rule complies with objectives. E.O. 13563 emphasizes regions. As noted above, the rule’s the fundamental Federalism principles further that regulations must be based requirements on any given entity is a and policymaking criteria established in on the best available science and that minimal order of magnitude compared EO 13132. Congress determined that the the rulemaking process must allow for to an entity’s annual operating budget. issue of Indian child welfare is public participation and an open In cases where that is not true, the entity sufficiently national in scope and exchange of ideas. The Department has (such as a private adoption agency) may significance to justify a statute that developed this rule in a manner choose to pass their costs on to parties applies uniformly across States. This consistent with these requirements. seeking placement and, on an rule invokes the United States’ special individual level, the incremental relationship with Indian Tribes and B. Regulatory Flexibility Act increase in costs is minimal. Nor will children by establishing a regulatory This rule will not have a significant this rule have significant adverse effects baseline for implementation to further economic effect on a substantial number on competition, employment, the goals of ICWA. Such goals include of small entities under the Regulatory investment, productivity, innovation, or protecting the best interests of Indian Flexibility Act (RFA) (5 U.S.C. 601 et the ability of the U.S.-based enterprises children and promoting the stability and seq.). The rule directly affects courts to compete with foreign-based security of Indian Tribes and families by that hear Indian child welfare enterprises because the rule affects only establishing minimum Federal proceedings, and indirectly affects placement of domestic children who standards for the removal of Indian public child welfare agencies and qualify as an ‘‘Indian child’’ under the children from their families and the private placement agencies. All of these Act. The Department has reviewed the placement of such children in foster or categories of affected entities likely potential increase in costs resulting adoptive homes that reflect the unique include entities that qualify as small from new regulatory requirements, and values of Indian culture. States are entities, so the Department has this analysis is available upon request. required to comply with ICWA even in estimated that rule affects the absence of this rule, and that D. Unfunded Mandates Reform Act approximately 7,625 small entities in requirement has existed since ICWA’s these categories. Therefore, the This rule does not impose an passage in 1978. Department has determined that this unfunded mandate on State, local, or rule will have an impact on a Tribal governments or the private sector G. Civil Justice Reform (E.O. 12988) substantial number of small entities. of more than $100 million per year. The This rule complies with the However, the Department has rule does not have a significant or requirements of Executive Order 12988. determined that the impact on entities unique effect on State, local, or Tribal Specifically, this rule meets the criteria

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of section 3(a) requiring all regulations Portland, Oregon; April 23, 2015, in for this rule and has assigned a control be reviewed to eliminate errors and Rapid City, South Dakota; May 5, 2015, number: ambiguity and be written to minimize in Albuquerque, New Mexico; May 7, OMB Control Number: 1076–0186. litigation and meets the criteria of 2015, in Prior Lake, Minnesota; May 11, Title: Indian Child Welfare Act section 3(b)(2) requiring that all 2015, by teleconference; and May 14, (ICWA) Proceedings in State Court. regulations be written in clear language 2015, in Tulsa, Oklahoma. Many Brief Description of Collection: This and contain clear legal standards. federally recognized Indian Tribes collection addresses the reporting, third- party disclosure, and recordkeeping H. Consultation With Indian Tribes submitted written comments and nearly requirements of ICWA, which requires (E.O. 13175) all, if not all, uniformly supported the regulations, though some had State courts and agencies and private The Department strives to strengthen suggestions for improvements. The businesses to provide notice to or its government-to-government Department considered each Tribe’s contact Tribes and parents/custodians of relationship with Indian Tribes through comments and their suggested any child custody proceeding that may a commitment to consultation with improvements and has addressed them, involve an ‘‘Indian child,’’ and requires Indian Tribes and recognition of their where possible, in the final rule. State courts and agencies to document right to self-governance and Tribal certain actions and maintain certain sovereignty. We have evaluated this rule I. Paperwork Reduction Act records regarding the removal and under the Department’s consultation placement of an ‘‘Indian child.’’ policy and under the criteria in This rule contains information Type of Review: Existing collection in Executive Order 13175 and have collection requirements and a use without OMB control number. identified substantial direct effects on submission to OMB under the Respondents: State and Tribal federally recognized Indian Tribes that Paperwork Reduction Act (PRA) is governments, businesses, and will result from this rule. This rule will required. The Paperwork Reduction Act individuals. affect Tribes by promoting (PRA), 44 U.S.C. 3501 et seq., prohibits Number of Respondents: 6,906 on implementation of a Federal statute a Federal agency from conducting or average (each year). intended to promote the stability and sponsoring a collection of information Number of Responses: 98,069 on security of Indian Tribes and families. that requires OMB approval, unless average (each year). These regulations are the outcome of such approval has been obtained and Frequency of Response: On occasion. recommendations made by Tribes the collection request displays a Estimated Time per Response: Ranges during several listening sessions on the currently valid OMB control number. from 15 minutes to 12 hours. ICWA guidelines. The Department Nor is any person required to respond Estimated Total Annual Hour Burden: hosted several formal Tribal to an information collection request that 301,811 hours. consultation sessions on the proposed has not complied with the PRA. OMB Estimated Total Annual Non-Hour rule, including on April 20, 2015, in has approved the information collection Cost: $309,630.

Total Annual Frequency Annual Completion annual Section Respondent Information collection number of of number of time per burden respondents responses responses response hours

23.107 ...... State court and/or Obtain information on whether child 50 260 13,000 12 156,000 agency. is ‘‘Indian child’’. 23.108, 23.109 Tribe ...... Respond to State regarding Tribal 567 23 13,041 1 13,041 membership. 23.110 ...... State court ...... Notify Tribal court of dismissal and 50 5 250 0.25 63 provide records. 23.11, 23.111 .. State court and/or Notify Tribe, parents, Indian custo- 50 273 13,650 6 81,900 agency. dian of child custody proceeding. 23.11, 23.111 .. Private placement Notify Tribe, parents, Indian custo- 1,289 2 2,578 6 15,468 agency. dian of child custody proceeding. 23.113 ...... State agency or Document basis for emergency re- 50 260 13,000 0.5 6,500 State court. moval/placement. 23.116, 23.119 State court...... Notify Tribal court of transfer re- 50 5 250 0 .25 63 quest, and provide records. 23.120 ...... Agency ...... Document ‘‘active efforts’’ ...... 50 167 8,350 0 .5 4,175 23.125, 23.126 Parent/Indian custo- Consent to termination or adoption 5,000 1 5,000 0.5 2,500 dian. (with required contents). 23.127, 23.128 State court...... Notify placement of withdrawal of 50 2 100 0.25 25 consent. 23.136 ...... State court ...... Notify of petition to vacate ...... 50 5 250 0.25 63 23.138 ...... State court ...... Inform adult adoptee of Tribal affili- 50 20 1,000 0 .5 500 ation upon request. 23.139 ...... State court...... Notify of change in status quo of 50 4 200 0 .25 63 adopted child. 23.140 ...... State court ...... Provide copy of final adoption de- 50 47 2,350 0 .25 588 cree/order. 23.141 ...... State court ...... Maintain records of each placement 50 167 8,350 0.5 4,175 (including required documents). 23.141 ...... State court or agen- Provide placement records to Tribe 50 167 8,350 1 .5 12,525 cy. or Secretary upon request within 14 days.

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Total Annual Frequency Annual Completion annual Section Respondent Information collection number of of number of time per burden respondents responses responses response hours

23.141 ...... State court or State Notify where records maintained ...... 50 167 8,350 0 .5 4,175 agency.

...... 98,069 ...... 301,811

The annual cost burden to also no longer maintains the historical this task is too low. The time to copy, respondents associated with providing affiliations, which was helpful. package and mail the documents will be notice by certified mail is $6.74 and the Response: BIA is now publishing the list no less than one hour, but more cost of a return receipt green card is using historical affiliations, as realistically two hours. Response: The $2.80. For each Indian child-custody requested, and making the list available final rule updates the burden estimates proceeding, at least two notices must be on its Web site, where it can be updated to reflect 1.5 hours. sent—one to the parent and one to the more frequently. The rule does not If you have comments on this Tribe, totaling $19.08. At an annual address this because these are information collection, please submit estimated 13,000 child welfare procedures internal to the BIA. them to Elizabeth K. Appel, Office of proceedings that may involve an • Comment on Proposed § 23.111(i), Regulatory Affairs & Collaborative ‘‘Indian child,’’ where approximately requiring notice by both States where Action—Indian Affairs, U.S. Department 650 of these include an interstate child is transferred interstate: Requiring of the Interior, 1849 C Street NW., MS– transfer (13,650), this totals: $260,442. both the originating State court and 3071, Washington, DC 20240, or by In addition, there are approximately receiving State court to provide notice is email to [email protected]. 2,578 voluntary proceedings for which duplicative and burdensome because J. National Environmental Policy Act parties may choose to provide notice, at notice should only be required in the a cost of $49,118. Together, the total State where the actual court proceeding This rule does not constitute a major cost burden is $309,630. is pending. Another commenter stated Federal action significantly affecting the Comment was taken on this that the provision appears to apply to quality of the human environment information collection in the proposed transfers between Tribes and States, because it is of an administrative, rule, as part of the public notice and where notice is unnecessary. Response: technical, and procedural nature. See, comment period proposed rule, in The final rule deletes this provision. 43 CFR 46.210(i). No extraordinary compliance with OMB regulations. One • Comment on Proposed § 23.134, circumstances exist that would require commenter, the California Health and requiring BIA to disclose information to greater review under the National Human Services Agency, Department of adult adoptees: This section appears to Environmental Policy Act. be creating duplicative work of the BIA Social Services (CHHS) submitted K. Effects on the Energy Supply (E.O. and States, because both sections comments specifically in response to 13211) the request for comments on the require each to provide adult adoptees information collection burden. information for Tribal enrollment. This rule is not a significant energy • Comment on Proposed § 23.111: Response: The Act imposes this action under the definition in Executive The proposed rule states that notice responsibility on both BIA and the Order 13211. A Statement of Energy must be by registered mail, whereas the State. Section 1951(b) of the Act Effects is not required. current 23.11(a) allows for notice by imposes the responsibility on BIA, List of Subjects in 25 CFR Part 23 certified mail. To require registered mail which is in § 23.71(b) of the final rule. will increase costs that undermine Section 1917 of the Act imposes the Administrative practice and noticing under ICWA. Response: The responsibility on States, which is procedure, Child welfare, Indians, statute specifies ‘‘registered mail with addressed at § 23.134 of the final rule. Reporting and recordkeeping return receipt requested.’’ 25 U.S.C. • Comment on Proposed § 23.137, requirements. 1912(a). In response to these comments, requiring the State to establish a single For the reasons stated in the the Department examined whether location for placement records: This preamble, the Department of the certified mail with return receipt requirement would be an unfunded Interior, Bureau of Indian Affairs, requested is allowable under the statute, mandate with undue burden and would amends part 23 in Title 25 of the Code and determined that it is because require relocating 1,145 files to a of Federal Regulations as follows: certified mail with return receipt different location and require changes to requested better meets the goals of existing recordkeeping systems. Another PART 23—INDIAN CHILD WELFARE prompt, documented notice. The final State agency commented that there is a ACT rule allows for certified mail. significant fiscal and annual burden due ■ • Comment on Proposed § 23.104, to the staffing, costs for copying, 1. The authority citation for part 23 providing information on how to contact packaging and transferring physical files continues to read as follows: 5 U.S.C. a Tribe: The rule should clarify BIA’s to a different location. Response: The 301; 25 U.S.C. 2, 9, 1901–1952. obligation in gathering the information final rule deletes the provision requiring ■ 2. In § 23.2: for the list of Tribe’s designated agents States to establish a single, central ■ a. Add a definition for ‘‘active efforts’’ and contact information because the repository. The associated information in alphabetical order; current list is outdated, inefficient, and collection request has also been deleted. ■ b. Revise the definition of ‘‘child- inconsistently maintained. The list is • Comment on Proposed § 23.137, custody proceeding’’; hampered by publication in the Federal requiring providing records to the ■ c. Add definitions for ‘‘continued Register and BIA should be required to Department or Tribe upon request: The custody’’, ‘‘custody’’, and ‘‘domicile’’ in publish updates on the Web. The list 15-minute burden estimate allocated to alphabetical order;

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■ d. Add a definition for ‘‘emergency Indian child’s extended family (2) An action that may culminate in proceeding’’ in alphabetical order; members, and contacting and consulting one of these four outcomes is ■ e. Revise the definition of ‘‘extended with extended family members to considered a separate child-custody family member’’; provide family structure and support for proceeding from an action that may ■ f. Add a definition for ‘‘hearing’’ in the Indian child and the Indian child’s culminate in a different one of these alphabetical order; parents; four outcomes. There may be several ■ g. Revise the definitions of ‘‘Indian (5) Offering and employing all child-custody proceedings involving child’’, ‘‘Indian child’s Tribe’’, and available and culturally appropriate any given Indian child. Within each ‘‘Indian custodian’’; family preservation strategies and child-custody proceeding, there may be ■ h. Add a definition for ‘‘Indian foster facilitating the use of remedial and several hearings. If a child is placed in home’’ in alphabetical order; rehabilitative services provided by the foster care or another out-of-home ■ i. Add a definition of ‘‘involuntary child’s Tribe; placement as a result of a status offense, proceeding’’ in alphabetical order; (6) Taking steps to keep siblings that status offense proceeding is a child- ■ j. Revise the definition of ‘‘parent’’; together whenever possible; custody proceeding. ■ k. Revise the definitions of (7) Supporting regular visits with * * * * * ‘‘reservation’’ and ‘‘Secretary’’; parents or Indian custodians in the most Continued custody means physical ■ l. Add a definition for ‘‘status natural setting possible as well as trial custody or legal custody or both, under offenses’’ in alphabetical order; home visits of the Indian child during any applicable Tribal law or Tribal ■ m. Revise the definition of ‘‘Tribal any period of removal, consistent with custom or State law, that a parent or court’’; and the need to ensure the health, safety, Indian custodian already has or had at ■ n. Add definitions for ‘‘upon and welfare of the child; any point in the past. The biological demand’’, and ‘‘voluntary proceeding’’ (8) Identifying community resources mother of a child has had custody of a in alphabetical order. including housing, financial, child. The additions and revisions read as transportation, mental health, substance Custody means physical custody or follows: abuse, and peer support services and legal custody or both, under any actively assisting the Indian child’s § 23.2 Definitions. applicable Tribal law or Tribal custom parents or, when appropriate, the or State law. A party may demonstrate * * * * * child’s family, in utilizing and accessing the existence of custody by looking to Active efforts means affirmative, those resources; Tribal law or Tribal custom or State law. active, thorough, and timely efforts (9) Monitoring progress and Domicile means: intended primarily to maintain or participation in services; (1) For a parent or Indian custodian, reunite an Indian child with his or her (10) Considering alternative ways to the place at which a person has been family. Where an agency is involved in address the needs of the Indian child’s physically present and that the person the child-custody proceeding, active parents and, where appropriate, the regards as home; a person’s true, fixed, efforts must involve assisting the parent family, if the optimum services do not principal, and permanent home, to or parents or Indian custodian through exist or are not available; which that person intends to return and the steps of a case plan and with (11) Providing post-reunification remain indefinitely even though the accessing or developing the resources services and monitoring. person may be currently residing necessary to satisfy the case plan. To the * * * * * elsewhere. maximum extent possible, active efforts Child-custody proceeding. (1) ‘‘Child- (2) For an Indian child, the domicile should be provided in a manner custody proceeding’’ means and of the Indian child’s parents or Indian consistent with the prevailing social and includes any action, other than an custodian or guardian. In the case of an cultural conditions and way of life of emergency proceeding, that may Indian child whose parents are not the Indian child’s Tribe and should be culminate in one of the following married to each other, the domicile of conducted in partnership with the outcomes: the Indian child’s custodial parent. Indian child and the Indian child’s (i) Foster-care placement, which is Emergency proceeding means and parents, extended family members, any action removing an Indian child includes any court action that involves Indian custodians, and Tribe. Active from his or her parent or Indian an emergency removal or emergency efforts are to be tailored to the facts and custodian for temporary placement in a placement of an Indian child. circumstances of the case and may foster home or institution or the home Extended family member is defined include, for example: of a guardian or conservator where the by the law or custom of the Indian (1) Conducting a comprehensive parent or Indian custodian cannot have child’s Tribe or, in the absence of such assessment of the circumstances of the the child returned upon demand, but law or custom, is a person who has Indian child’s family, with a focus on where parental rights have not been reached age 18 and who is the Indian safe reunification as the most desirable terminated; child’s grandparent, aunt or uncle, goal; (ii) Termination of parental rights, brother or sister, brother-in-law or (2) Identifying appropriate services which is any action resulting in the sister-in-law, niece or nephew, first or and helping the parents to overcome termination of the parent-child second cousin, or stepparent. barriers, including actively assisting the relationship; * * * * * parents in obtaining such services; (iii) Preadoptive placement, which is Hearing means a judicial session held (3) Identifying, notifying, and inviting the temporary placement of an Indian for the purpose of deciding issues of representatives of the Indian child’s child in a foster home or institution fact, of law, or both. Tribe to participate in providing support after the termination of parental rights, * * * * * and services to the Indian child’s family but prior to or in lieu of adoptive Indian child means any unmarried and in family team meetings, placement; or person who is under age 18 and either: permanency planning, and resolution of (iv) Adoptive placement, which is the (1) Is a member or citizen of an Indian placement issues; permanent placement of an Indian child Tribe; or (4) Conducting or causing to be for adoption, including any action (2) Is eligible for membership or conducted a diligent search for the resulting in a final decree of adoption. citizenship in an Indian Tribe and is the

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biological child of a member/citizen of of Indian Offenses, a court established Minnesota, Ohio, or Wisconsin, notices an Indian Tribe. and operated under the code or custom must be sent to the following address: Indian child’s Tribe means: of an Indian Tribe, or any other Minneapolis Regional Director, Bureau (1) The Indian Tribe in which an administrative body of a Tribe vested of Indian Affairs, 331 Second Avenue Indian child is a member or eligible for with authority over child-custody South, Minneapolis, Minnesota 55401– membership; or proceedings. 2241. (2) In the case of an Indian child who * * * * * (3) For child-custody proceedings in is a member of or eligible for Upon demand means that the parent Nebraska, North Dakota, or South membership in more than one Tribe, the or Indian custodian can regain custody Dakota, notices must be sent to the Indian Tribe described in § 23.109. simply upon verbal request, without any following address: Aberdeen Regional Indian custodian means any Indian formalities or contingencies. Director, Bureau of Indian Affairs, 115 who has legal custody of an Indian child Fourth Avenue SE., Aberdeen, South * * * * * under applicable Tribal law or custom Dakota 57401. Voluntary proceeding means a child- or under applicable State law, or to (4) For child-custody proceedings in custody proceeding that is not an whom temporary physical care, custody, Kansas, Texas (except for notices to the involuntary proceeding, such as a and control has been transferred by the Ysleta del Sur Pueblo of El Paso County, proceeding for foster-care, preadoptive, parent of such child. An Indian may Texas), or the western Oklahoma or adoptive placement that either demonstrate that he or she is an Indian counties of Alfalfa, Beaver, Beckman, parent, both parents, or the Indian custodian by looking to Tribal law or Blaine, Caddo, Canadian, Cimarron, custodian has, of his or her or their free Tribal custom or State law. Cleveland, Comanche, Cotton, Custer, will, without a threat of removal by a Indian foster home means a foster Dewey, Ellis, Garfield, Grant, Greer, State agency, consented to for the Indian home where one or more of the licensed Harmon, Harper, Jackson, Kay, child, or a proceeding for voluntary or approved foster parents is an Kingfisher, Kiowa, Lincoln, Logan, termination of parental rights. ‘‘Indian’’ as defined in 25 U.S.C. Major, Noble, Oklahoma, Pawnee, 1903(3). ■ 3. Revise § 23.11 to read as follows: Payne, Pottawatomie, Roger Mills, Texas, Tillman, Washita, Woods or Involuntary proceeding means a § 23.11 Notice. child-custody proceeding in which the Woodward, notices must be sent to the (a) In any involuntary proceeding in parent does not consent of his or her following address: Anadarko Regional a State court where the court knows or free will to the foster-care, preadoptive, Director, Bureau of Indian Affairs, P.O. has reason to know that an Indian child or adoptive placement or termination of Box 368, Anadarko, Oklahoma 73005. is involved, and where the identity and parental rights or in which the parent Notices to the Ysleta del Sur Pueblo location of the child’s parent or Indian consents to the foster-care, preadoptive, must be sent to the Albuquerque custodian or Tribe is known, the party or adoptive placement under threat of Regional Director at the address listed in seeking the foster-care placement of, or removal of the child by a State court or paragraph (b)(6) of this section. termination of parental rights to, an agency. (5) For child-custody proceedings in Indian child must directly notify the Wyoming or Montana (except for * * * * * parents, the Indian custodians, and the notices to the Confederated Salish and Parent or parents means any child’s Tribe by registered or certified Kootenai Tribes of the Flathead biological parent or parents of an Indian mail with return receipt requested, of Reservation, Montana), notices must be child, or any Indian who has lawfully the pending child-custody proceedings sent to the following address: Billings adopted an Indian child, including and their right of intervention. Notice Regional Director, Bureau of Indian adoptions under Tribal law or custom. must include the requisite information Affairs, 316 N. 26th Street, Billings, It does not include an unwed biological identified in § 23.111, consistent with Montana 59101. Notices to the father where paternity has not been the confidentiality requirement in Confederated Salish and Kootenai acknowledged or established. § 23.111(d)(6)(ix). Copies of these Tribes of the Flathead Reservation, Reservation means Indian country as notices must be sent to the appropriate Montana, must be sent to the Portland defined in 18 U.S.C 1151 and any lands, Regional Director listed in paragraphs Regional Director at the address listed in not covered under that section, title to (b)(1) through (12) of this section by paragraph (b)(11) of this section. which is held by the United States in registered or certified mail with return (6) For child-custody proceedings in trust for the benefit of any Indian Tribe receipt requested or by personal the Texas counties of El Paso and or individual or held by any Indian delivery and must include the Hudspeth or in Colorado or New Mexico Tribe or individual subject to a information required by § 23.111. (exclusive of notices to the Navajo restriction by the United States against (b)(1) For child-custody proceedings Nation from the New Mexico counties alienation. in Alabama, Connecticut, Delaware, listed in paragraph (b)(9) of this Secretary means the Secretary of the District of Columbia, Florida, Georgia, section), notices must be sent to the Interior or the Secretary’s authorized Kentucky, Louisiana, Maine, Maryland, following address: Albuquerque representative acting under delegated Massachusetts, Mississippi, New Regional Director, Bureau of Indian authority. Hampshire, New Jersey, New York, Affairs, 615 First Street, P.O. Box 26567, * * * * * North Carolina, Pennsylvania, Rhode Albuquerque, New Mexico 87125. Status offenses mean offenses that Island, South Carolina, Tennessee, Notices to the Navajo Nation must be would not be considered criminal if Vermont, Virginia, West Virginia, or any sent to the Navajo Regional Director at committed by an adult; they are acts territory or possession of the United the address listed in paragraph (b)(9) of prohibited only because of a person’s States, notices must be sent to the this section. status as a minor (e.g., truancy, following address: Eastern Regional (7) For child-custody proceedings in incorrigibility). Director, Bureau of Indian Affairs, 545 Alaska (except for notices to the * * * * * Marriott Drive, Suite 700, Nashville, Metlakatla Indian Community, Annette Tribal court means a court with Tennessee 37214. Island Reserve, Alaska), notices must be jurisdiction over child-custody (2) For child-custody proceedings in sent to the following address: Juneau proceedings and which is either a Court Illinois, Indiana, Iowa, Michigan, Regional Director, Bureau of Indian

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Affairs, 709 West 9th Street, Juneau, must also be sent to the Portland Information Act, 5 U.S.C. 552, as Alaska 99802–1219. Notices to the Regional Director. amended. Metlakatla Indian Community, Annette (12) For child-custody proceedings in ■ 5. Add subpart I to read as follows: Island Reserve, Alaska, must be sent to California or Hawaii, notices must be the Portland Regional Director at the sent to the following address: Subpart I—Indian Child Welfare Act address listed in paragraph (b)(11) of Sacramento Regional Director, Bureau of Proceedings this section. Indian Affairs, Federal Office Building, General Provisions (8) For child-custody proceedings in 2800 Cottage Way, Sacramento, California 95825. Sec. Arkansas, Missouri, or the eastern 23.101 What is the purpose of this subpart? Oklahoma counties of Adair, Atoka, (c) Upon receipt of the notice, the Secretary will make reasonable 23.102 What terms do I need to know? Bryan, Carter, Cherokee, Craig, Creek, 23.103 When does ICWA apply? Choctaw, Coal, Delaware, Garvin, documented efforts to locate and notify 23.104 What provisions of this subpart Grady, Haskell, Hughes, Jefferson, the child’s Tribe and the child’s parent apply to each type of child-custody Johnson, Latimer, LeFlore, Love, Mayes, or Indian custodian. The Secretary will proceeding? McCurtain, McClain, McIntosh, Murray, have 15 days, after receipt of the notice, 23.105 How do I contact a Tribe under the Muskogee, Nowata, Okfuskee, to notify the child’s Tribe and parents regulations in this subpart? Okmulgee, Osage, Ottawa, Pittsburg, or Indian custodians and to send a copy 23.106 How does this subpart interact with Pontotoc, Pushmataha, Marshall, of the notice to the court. If within the State and Federal laws? Rogers, Seminole, Sequoyah, Stephens, 15-day period the Secretary is unable to Pretrial Requirements Tulsa, Wagoner, or Washington, notices verify that the child meets the criteria of an Indian child as defined in § 23.2, or 23.107 How should a State court determine must be sent to the following address: if there is reason to know the child is an Muskogee Regional Director, Bureau of is unable to locate the parents or Indian Indian child? Indian Affairs, 101 North Fifth Street, custodians, the Secretary will so inform 23.108 Who makes the determination as to Muskogee, Oklahoma 74401. the court and state how much more whether a child is a member, whether a (9) For child-custody proceedings in time, if any, will be needed to complete child is eligible for membership, or the Arizona counties of Apache, the verification or the search. The whether a biological parent is a member Coconino (except for notices to the Hopi Secretary will complete all research of a Tribe? 23.109 How should a State court determine Tribe of Arizona and the San Juan efforts, even if those efforts cannot be completed before the child-custody an Indian child’s Tribe when the child Southern Paiute Tribe of Arizona) or may be a member or eligible for Navajo (except for notices to the Hopi proceeding begins. (d) Upon request from a party to an membership in more than one Tribe? Tribe of Arizona); the New Mexico Indian child-custody proceeding, the 23.110 When must a State court dismiss an counties of McKinley (except for notices action? Secretary will make a reasonable to the Zuni Tribe of the Zuni 23.111 What are the notice requirements for attempt to identify and locate the child’s Reservation), San Juan, or Socorro; or a child-custody proceeding involving an Tribe, parents, or Indian custodians to the Utah county of San Juan, notices Indian child? assist the party seeking the information. must be sent to the following address: 23.112 What time limits and extensions ■ Navajo Regional Director, Bureau of 4. Revise § 23.71 to read as follows: apply? 23.113 What are the standards for Indian Affairs, P.O. Box 1060, Gallup, § 23.71 Recordkeeping and information emergency proceedings involving an New Mexico 87301. Notices to the Hopi availability. Indian child? and San Juan Southern Paiute Tribes of (a) The Division of Human Services, 23.114 What are the requirements for Arizona must be sent to the Phoenix Bureau of Indian Affairs (BIA), is determining improper removal? Regional Director at the address listed in authorized to receive all information Petitions To Transfer to Tribal Court paragraph (b)(10) of this section. Notices and to maintain a central file on all to the Zuni Tribe of the Zuni 23.115 How are petitions for transfer of a State Indian adoptions. This file is proceeding made? Reservation must be sent to the confidential and only designated Albuquerque Regional Director at the 23.116 What happens after a petition for persons may have access to it. transfer is made? address listed in paragraph (b)(6 of this (b) Upon the request of an adopted 23.117 What are the criteria for ruling on section). Indian who has reached age 18, the transfer petitions? (10) For child-custody proceedings in adoptive or foster parents of an Indian 23.118 How is a determination of ‘‘good Arizona (exclusive of notices to the child, or an Indian Tribe, BIA will cause’’ to deny transfer made? Navajo Nation from those counties disclose such information as may be 23.119 What happens after a petition for listed in paragraph (b)(9) of this necessary for purposes of Tribal transfer is granted? section), Nevada, or Utah (exclusive of enrollment or determining any rights or Adjudication of Involuntary Proceedings San Juan County), notices must be sent benefits associated with Tribal 23.120 How does the State court ensure that to the following address: Phoenix membership. Where the documents active efforts have been made? Regional Director, Bureau of Indian relating to such child contain an 23.121 What are the applicable standards of Affairs, 1 North First Street, P.O. Box affidavit from the biological parent or evidence? 10, Phoenix, Arizona 85001. parents requesting anonymity, BIA must 23.122 Who may serve as a qualified expert (11) For child-custody proceedings in certify to the Indian child’s Tribe, where witness? Idaho, Oregon, or Washington, notices the information warrants, that the 23.123 [Reserved] must be sent to the following address: child’s parentage and other Voluntary Proceedings Portland Regional Director, Bureau of circumstances entitle the child to Indian Affairs, 911 NE 11th Avenue, 23.124 What actions must a State court enrollment under the criteria undertake in voluntary proceedings? Portland, Oregon 97232. All notices to established by such Tribe. 23.125 How is consent obtained? the Confederated Salish and Kootenai (c) BIA will ensure that the 23.126 What information must a consent Tribes of the Flathead Reservation, confidentiality of this information is document contain? located in the Montana counties of maintained and that the information is 23.127 How is withdrawal of consent to a Flathead, Lake, Missoula, and Sanders, not subject to the Freedom of foster-care placement achieved?

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23.128 How is withdrawal of consent to a Subpart I—Indian Child Welfare Act placement of the child, including a termination of parental rights or Proceedings foster-care, preadoptive, or adoptive adoption achieved? placement, or termination of parental General Provisions Dispositions rights. § 23.101 What is the purpose of this (2) An emergency proceeding. 23.129 When do the placement preferences subpart? (b) ICWA does not apply to: apply? 23.130 What placement preferences apply The regulations in this subpart clarify (1) A Tribal court proceeding; in adoptive placements? the minimum Federal standards (2) A proceeding regarding a criminal 23.131 What placement preferences apply governing implementation of the Indian act that is not a status offense; in foster-care or preadoptive placements? Child Welfare Act (ICWA) to ensure that (3) An award of custody of the Indian 23.132 How is a determination of ‘‘good ICWA is applied in all States consistent child to one of the parents including, cause’’ to depart from the placement with the Act’s express language, but not limited to, an award in a divorce preferences made? Congress’s intent in enacting the statute, proceeding; or and to promote the stability and security (4) A voluntary placement that either Access of Indian tribes and families. parent, both parents, or the Indian 23.133 Should courts allow participation by § 23.102 What terms do I need to know? custodian has, of his or her or their free alternative methods? will, without a threat of removal by a 23.134 Who has access to reports and The following terms and their State agency, chosen for the Indian records during a proceeding? definitions apply to this subpart. All child and that does not operate to 23.135 [Reserved] other terms have the meanings assigned prohibit the child’s parent or Indian in § 23.2. custodian from regaining custody of the Post-Trial Rights & Responsibilities Agency means a nonprofit, for-profit, child upon demand. or governmental organization and its 23.136 What are the requirements for (c) If a proceeding listed in paragraph vacating an adoption based on consent employees, agents, or officials that (a) of this section concerns a child who having been obtained through fraud or performs, or provides services to meets the statutory definition of ‘‘Indian duress? biological parents, foster parents, or child,’’ then ICWA will apply to that 23.137 Who can petition to invalidate an adoptive parents to assist in the proceeding. In determining whether action for certain ICWA violations? administrative and social work 23.138 What are the rights to information necessary for foster, preadoptive, or ICWA applies to a proceeding, the State about adoptees’ Tribal affiliations? adoptive placements. court may not consider factors such as 23.139 Must notice be given of a change in Indian organization means any group, the participation of the parents or the an adopted Indian child’s status? association, partnership, corporation, or Indian child in Tribal cultural, social, other legal entity owned or controlled religious, or political activities, the Recordkeeping by Indians or a Tribe, or a majority of relationship between the Indian child 23.140 What information must States whose members are Indians. and his or her parents, whether the furnish to the Bureau of Indian Affairs? parent ever had custody of the child, or 23.141 What records must the State § 23.103 When does ICWA apply? the Indian child’s blood quantum. maintain? (a) ICWA includes requirements that (d) If ICWA applies at the 23.142 How does the Paperwork Reduction apply whenever an Indian child is the commencement of a proceeding, it will Act affect this subpart? subject of: not cease to apply simply because the (1) A child-custody proceeding, child reaches age 18 during the Effective Date including: pendency of the proceeding. 23.143 How does this subpart apply to (i) An involuntary proceeding; pending proceedings? (ii) A voluntary proceeding that could § 23.104 What provisions of this subpart prohibit the parent or Indian custodian apply to each type of child-custody Severability from regaining custody of the child proceeding? 23.144 What happens if some portion of upon demand; and The following table lists what sections this part is held to be invalid by a court (iii) A proceeding involving status of this subpart apply to each type of of competent jurisdiction? offenses if any part of the proceeding child-custody proceeding identified in results in the need for out-of-home § 23.103(a):

Section Type of proceeding

23.101–23.106 (General Provisions) ...... Emergency, Involuntary, Voluntary. Pretrial Requirements: 23.107 (How should a State court determine if there is reason to know the child is an Indian Emergency, Involuntary, Voluntary. child?). 23.108 (Who makes the determination as to whether a child is a member whether a child is eli- Emergency, Involuntary, Voluntary. gible for membership, or whether a biological parent is a member of a Tribe?). 23.109 (How should a State court determine an Indian child’s Tribe when the child may be a Emergency, Involuntary, Voluntary. member or eligible for membership in more than one Tribe?). 23.110 (When must a State court dismiss an action?) ...... Involuntary, Voluntary. 23.111 (What are the notice requirements for a child-custody proceeding involving an Indian Involuntary (foster-care placement and termi- child?). nation of parental rights). 23.112 (What time limits and extensions apply?) ...... Involuntary (foster-care placement and termi- nation of parental rights). 23.113 (What are the standards for emergency proceedings involving an Indian child?) ...... Emergency. 23.114 (What are the requirements for determining improper removal?) ...... Involuntary. Petitions to Transfer to Tribal Court: 23.115 (How are petitions for transfer of a proceeding made?) ...... Involuntary, Voluntary (foster-care placement and termination of parental rights).

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Section Type of proceeding

23.116 (What happens after a petition for transfer is made?) ...... Involuntary, Voluntary (foster-care placement and termination of parental rights). 23.117 (What are the criteria for ruling on transfer petitions?) ...... Involuntary, Voluntary (foster-care placement and termination of parental rights). 23.118 (How is a determination of ‘‘good cause’’ to deny transfer made?) ...... Involuntary, Voluntary (foster-care placement and termination of parental rights). 23.119 (What happens after a petition for transfer is granted?) ...... Involuntary, Voluntary (foster-care placement and termination of parental rights). Adjudication of Involuntary Proceedings: 23.120 (How does the State court ensure that active efforts have been made?) ...... Involuntary (foster-care placement and termi- nation of parental rights). 23.121 (What are the applicable standards of evidence?) ...... Involuntary (foster-care placement and termi- nation of parental rights). 23.122 (Who may serve as a qualified expert witness?) ...... Involuntary (foster-care placement and termi- nation of parental rights). 23.123 Reserved ...... N/A. Voluntary Proceedings: 23.124 (What actions must a State court undertake in voluntary proceedings?) ...... Voluntary. 23.125 (How is consent obtained?) ...... Voluntary. 23.126 (What information must a consent document contain?) ...... Voluntary. 23.127 (How is withdrawal of consent to a foster-care placement achieved?) ...... Voluntary. 23.128 (How is withdrawal of consent to a termination of parental rights or adoption achieved?) Voluntary. Dispositions: 23.129 (When do the placement preferences apply?) ...... Involuntary, Voluntary. 23.130 (What placement preferences apply in adoptive placements?) ...... Involuntary, Voluntary. 23.131 (What placement preferences apply in foster-care or preadoptive placements?) ...... Involuntary, Voluntary. 23.132 (How is a determination of ‘‘good cause’’ to depart from the placement preferences Involuntary, Voluntary. made?). Access: 23.133 (Should courts allow participation by alternative methods?) ...... Emergency, Involuntary. 23.134 (Who has access to reports and records during a proceeding?) ...... Emergency, Involuntary. 23.135 Reserved...... N/A. Post-Trial Rights & Responsibilities: 23.136 (What are the requirements for vacating an adoption based on consent having been ob- Involuntary (if consent given under threat of re- tained through fraud or duress?). moval), voluntary. 23.137 (Who can petition to invalidate an action for certain ICWA violations?) ...... Emergency (to extent it involved a specified violation), involuntary, voluntary. 23.138 (What are the rights to information about adoptees’ Tribal affiliations?) ...... Emergency, Involuntary, Voluntary. 23.139 (Must notice be given of a change in an adopted Indian child’s status?) ...... Involuntary, Voluntary. Recordkeeping: 23.140 (What information must States furnish to the Bureau of Indian Affairs?) ...... Involuntary, Voluntary. 23.141 (What records must the State maintain?) ...... Involuntary, Voluntary. 23.142 (How does the Paperwork Reduction Act affect this subpart?) ...... Emergency, Involuntary, Voluntary. Effective Date: 23.143 (How does this subpart apply to pending proceedings?) ...... Emergency, Involuntary, Voluntary. Severability: 23.144 (What happens if some portion of part is held to be invalid by a court of competent ju- Emergency, Involuntary, Voluntary. risdiction?). Note: For purposes of this table, status-offense child-custody proceedings are included as a type of involuntary proceeding.

§ 23.105 How do I contact a Tribe under contacted fails to respond to written Pretrial Requirements the regulations in this subpart? inquiries, you should seek assistance in To contact a Tribe to provide notice contacting the Indian Tribe from the § 23.107 How should a State court determine if there is reason to know the or obtain information or verification BIA local or regional office or the BIA’s child is an Indian child? under the regulations in this subpart, Central Office in Washington, DC (see you should direct the notice or inquiry www.bia.gov). (a) State courts must ask each as follows: participant in an emergency or (a) Many Tribes designate an agent for § 23.106 How does this subpart interact voluntary or involuntary child-custody receipt of ICWA notices. The BIA with State and Federal laws? proceeding whether the participant publishes a list of Tribes’ designated (a) The regulations in this subpart knows or has reason to know that the Tribal agents for service of ICWA notice provide minimum Federal standards to child is an Indian child. The inquiry is in the Federal Register each year and ensure compliance with ICWA. made at the commencement of the makes the list available on its Web site (b) Under section 1921 of ICWA, proceeding and all responses should be at www.bia.gov. where applicable State or other Federal on the record. State courts must instruct (b) For a Tribe without a designated law provides a higher standard of the parties to inform the court if they Tribal agent for service of ICWA notice, protection to the rights of the parent or subsequently receive information that contact the Tribe to be directed to the Indian custodian than the protection provides reason to know the child is an appropriate office or individual. accorded under the Act, ICWA requires Indian child. (c) If you do not have accurate contact the State or Federal court to apply the (b) If there is reason to know the child information for a Tribe, or the Tribe higher State or Federal standard. is an Indian child, but the court does

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not have sufficient evidence to § 23.108 Who makes the determination as for the purposes of ICWA, the Indian determine that the child is or is not an to whether a child is a member, whether a Tribe with which the Indian child has ‘‘Indian child,’’ the court must: child is eligible for membership, or whether the more significant contacts as the a biological parent is a member of a Tribe? (1) Confirm, by way of a report, Indian child’s Tribe, taking into declaration, or testimony included in (a) The Indian Tribe of which it is consideration: the record that the agency or other party believed the child is a member (or (i) Preference of the parents for used due diligence to identify and work eligible for membership and of which membership of the child; with all of the Tribes of which there is the biological parent is a member) (ii) Length of past domicile or reason to know the child may be a determines whether the child is a residence on or near the reservation of member (or eligible for membership), to member of the Tribe, or whether the each Tribe; verify whether the child is in fact a child is eligible for membership in the (iii) Tribal membership of the child’s member (or a biological parent is a Tribe and a biological parent of the custodial parent or Indian custodian; member and the child is eligible for child is a member of the Tribe, except and membership); and as otherwise provided by Federal or (iv) Interest asserted by each Tribe in Tribal law. (2) Treat the child as an Indian child, the child-custody proceeding; (b) The determination by a Tribe of unless and until it is determined on the (v) Whether there has been a previous whether a child is a member, whether record that the child does not meet the adjudication with respect to the child by a child is eligible for membership, or definition of an ‘‘Indian child’’ in this a court of one of the Tribes; and whether a biological parent is a member, part. (vi) Self-identification by the child, if is solely within the jurisdiction and (c) A court, upon conducting the the child is of sufficient age and authority of the Tribe, except as capacity to meaningfully self-identify. inquiry required in paragraph (a) of this otherwise provided by Federal or Tribal section, has reason to know that a child (3) A determination of the Indian law. The State court may not substitute child’s Tribe for purposes of ICWA and involved in an emergency or child- its own determination regarding a custody proceeding is an Indian child if: the regulations in this subpart do not child’s membership in a Tribe, a child’s constitute a determination for any other (1) Any participant in the proceeding, eligibility for membership in a Tribe, or purpose. officer of the court involved in the a parent’s membership in a Tribe. proceeding, Indian Tribe, Indian (c) The State court may rely on facts § 23.110 When must a State court dismiss organization, or agency informs the or documentation indicating a Tribal an action? court that the child is an Indian child; determination of membership or Subject to 25 U.S.C. 1919 (Agreements (2) Any participant in the proceeding, eligibility for membership in making a between States and Indian Tribes) and officer of the court involved in the judicial determination as to whether the § 23.113 (emergency proceedings), the proceeding, Indian Tribe, Indian child is an ‘‘Indian child.’’ An example following limitations on a State court’s organization, or agency informs the of documentation indicating jurisdiction apply: court that it has discovered information membership is a document issued by (a) The court in any voluntary or indicating that the child is an Indian the Tribe, such as Tribal enrollment involuntary child-custody proceeding child; documentation. involving an Indian child must (3) The child who is the subject of the determine the residence and domicile of proceeding gives the court reason to § 23.109 How should a State court the Indian child. If either the residence determine an Indian child’s Tribe when the or domicile is on a reservation where know he or she is an Indian child; child may be a member or eligible for (4) The court is informed that the membership in more than one Tribe? the Tribe exercises exclusive domicile or residence of the child, the jurisdiction over child-custody (a) If the Indian child is a member or proceedings, the State court must child’s parent, or the child’s Indian eligible for membership in only one custodian is on a reservation or in an expeditiously notify the Tribal court of Tribe, that Tribe must be designated as the pending dismissal based on the Alaska Native village; the Indian child’s Tribe. (5) The court is informed that the Tribe’s exclusive jurisdiction, dismiss (b) If the Indian child meets the the State-court child-custody child is or has been a ward of a Tribal definition of ‘‘Indian child’’ through court; or proceeding, and ensure that the Tribal more than one Tribe, deference should court is sent all information regarding (6) The court is informed that either be given to the Tribe in which the the Indian child-custody proceeding, parent or the child possesses an Indian child is already a member, unless including, but not limited to, the identification card indicating otherwise agreed to by the Tribes. pleadings and any court record. membership in an Indian Tribe. (c) If an Indian child meets the (b) If the child is a ward of a Tribal (d) In seeking verification of the definition of ‘‘Indian child’’ through court, the State court must child’s status in a voluntary proceeding more than one Tribe because the child expeditiously notify the Tribal court of where a consenting parent evidences, by is a member in more than one Tribe or the pending dismissal, dismiss the written request or statement in the the child is not a member of but is State-court child-custody proceeding, record, a desire for anonymity, the court eligible for membership in more than and ensure that the Tribal court is sent must keep relevant documents one Tribe, the court must provide the all information regarding the Indian pertaining to the inquiry required under opportunity in any involuntary child- child-custody proceeding, including, this section confidential and under seal. custody proceeding for the Tribes to but not limited to, the pleadings and A request for anonymity does not determine which should be designated any court record. relieve the court, agency, or other party as the Indian child’s Tribe. from any duty of compliance with (1) If the Tribes are able to reach an § 23.111 What are the notice requirements ICWA, including the obligation to verify agreement, the agreed-upon Tribe for a child-custody proceeding involving an whether the child is an ‘‘Indian child.’’ should be designated as the Indian Indian child? A Tribe receiving information related to child’s Tribe. (a) When a court knows or has reason this inquiry must keep documents and (2) If the Tribes are unable to reach an to know that the subject of an information confidential. agreement, the State court designates, involuntary foster-care-placement or

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termination-of-parental-rights (iv) That, if the child’s parent or applicable right to appointed counsel, proceeding is an Indian child, the court Indian custodian is unable to afford right to request that the child-custody must ensure that: counsel based on a determination of proceeding be transferred to Tribal (1) The party seeking placement indigency by the court, the parent or court, right to object to such transfer, promptly sends notice of each such Indian custodian has the right to court- right to request additional time to child-custody proceeding (including, appointed counsel. prepare for the child-custody but not limited to, any foster-care (v) The right to be granted, upon proceeding as provided in § 23.112, and placement or any termination of request, up to 20 additional days to right (if the parent or Indian custodian parental or custodial rights) in prepare for the child-custody is not already a party) to intervene in accordance with this section; and proceedings. the child-custody proceedings. (2) An original or a copy of each (vi) The right of the parent or Indian notice sent under this section is filed custodian and the Indian child’s Tribe § 23.112 What time limits and extensions with the court together with any return to petition the court for transfer of the apply? receipts or other proof of service. foster-care-placement or termination-of- (a) No foster-care-placement or (b) Notice must be sent to: parental-rights proceeding to Tribal termination-of-parental-rights (1) Each Tribe where the child may be court as provided by 25 U.S.C. 1911 and proceeding may be held until at least 10 a member (or eligible for membership if § 23.115. days after receipt of the notice by the a biological parent is a member) (see (vii) The mailing addresses and parent (or Indian custodian) and by the § 23.105 for information on how to telephone numbers of the court and Tribe (or the Secretary). The parent, contact a Tribe); information related to all parties to the Indian custodian, and Tribe each have (2) The child’s parents; and child-custody proceeding and a right, upon request, to be granted up (3) If applicable, the child’s Indian individuals notified under this section. to 20 additional days from the date custodian. (viii) The potential legal upon which notice was received to (c) Notice must be sent by registered consequences of the child-custody prepare for participation in the or certified mail with return receipt proceedings on the future parental and proceeding. requested. Notice may also be sent via custodial rights of the parent or Indian (b) Except as provided in 25 U.S.C. personal service or electronically, but custodian. 1922 and § 23.113, no child-custody such alternative methods do not replace (ix) That all parties notified must keep proceeding for foster-care placement or the requirement for notice to be sent by confidential the information contained termination of parental rights may be registered or certified mail with return in the notice and the notice should not held until the waiting periods to which receipt requested. be handled by anyone not needing the the parents or Indian custodians and to (d) Notice must be in clear and information to exercise rights under which the Indian child’s Tribe are understandable language and include ICWA. entitled have expired, as follows: the following: (e) If the identity or location of the (1) 10 days after each parent or Indian (1) The child’s name, birthdate, and child’s parents, the child’s Indian custodian (or Secretary where the parent birthplace; custodian, or the Tribes in which the or Indian custodian is unknown to the (2) All names known (including Indian child is a member or eligible for petitioner) has received notice of that maiden, married, and former names or membership cannot be ascertained, but particular child-custody proceeding in aliases) of the parents, the parents’ there is reason to know the child is an accordance with 25 U.S.C. 1912(a) and birthdates and birthplaces, and Tribal Indian child, notice of the child-custody § 23.111; enrollment numbers if known; proceeding must be sent to the (2) 10 days after the Indian child’s (3) If known, the names, birthdates, appropriate Bureau of Indian Affairs Tribe (or the Secretary if the Indian birthplaces, and Tribal enrollment Regional Director (see www.bia.gov). To child’s Tribe is unknown to the party information of other direct lineal establish Tribal identity, as much seeking placement) has received notice ancestors of the child, such as information as is known regarding the of that particular child-custody grandparents; child’s direct lineal ancestors should be proceeding in accordance with 25 (4) The name of each Indian Tribe in provided. The Bureau of Indian Affairs U.S.C. 1912(a) and § 23.111; which the child is a member (or may be will not make a determination of Tribal (3) Up to 30 days after the parent or eligible for membership if a biological membership but may, in some Indian custodian has received notice of parent is a member); instances, be able to identify Tribes to that particular child-custody proceeding (5) A copy of the petition, complaint, contact. in accordance with 25 U.S.C. 1912(a) or other document by which the child- (f) If there is a reason to know that a and § 23.111, if the parent or Indian custody proceeding was initiated and, if parent or Indian custodian possesses custodian has requested up to 20 a hearing has been scheduled, limited English proficiency and is additional days to prepare for the child- information on the date, time, and therefore not likely to understand the custody proceeding as provided in 25 location of the hearing; contents of the notice, the court must U.S.C. 1912(a) and § 23.111; and (6) Statements setting out: provide language access services as (4) Up to 30 days after the Indian (i) The name of the petitioner and the required by Title VI of the Civil Rights child’s Tribe has received notice of that name and address of petitioner’s Act and other Federal laws. To secure particular child-custody proceeding in attorney; such translation or interpretation accordance with 25 U.S.C. 1912(a) and (ii) The right of any parent or Indian support, a court may contact or direct a § 23.111, if the Indian child’s Tribe has custodian of the child, if not already a party to contact the Indian child’s Tribe requested up to 20 additional days to party to the child-custody proceeding, or the local BIA office for assistance in prepare for the child-custody to intervene in the proceedings. locating and obtaining the name of a proceeding. (iii) The Indian Tribe’s right to qualified translator or interpreter. (c) Additional time beyond the intervene at any time in a State-court (g) If a parent or Indian custodian of minimum required by 25 U.S.C. 1912 proceeding for the foster-care placement an Indian child appears in court without and § 23.111 may also be available of or termination of parental rights to an an attorney, the court must inform him under State law or pursuant to Indian child. or her of his or her rights, including any extensions granted by the court.

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§ 23.113 What are the standards for made to locate and contact them, child to substantial and immediate emergency proceedings involving an Indian including contact with the appropriate danger or threat of such danger. child? BIA Regional Director (see Petitions To Transfer to Tribal Court (a) Any emergency removal or www.bia.gov); placement of an Indian child under (5) The residence and the domicile of § 23.115 How are petitions for transfer of State law must terminate immediately the Indian child; a proceeding made? when the removal or placement is no (6) If either the residence or the (a) Either parent, the Indian longer necessary to prevent imminent domicile of the Indian child is believed custodian, or the Indian child’s Tribe physical damage or harm to the child. to be on a reservation or in an Alaska may request, at any time, orally on the (b) The State court must: Native village, the name of the Tribe record or in writing, that the State court (1) Make a finding on the record that affiliated with that reservation or transfer a foster-care or termination-of- the emergency removal or placement is village; parental-rights proceeding to the necessary to prevent imminent physical (7) The Tribal affiliation of the child jurisdiction of the child’s Tribe. damage or harm to the child; and of the parents or Indian custodians; (b) The right to request a transfer is (2) Promptly hold a hearing on (8) A specific and detailed account of available at any stage in each foster-care whether the emergency removal or the circumstances that led the agency or termination-of-parental-rights placement continues to be necessary responsible for the emergency removal proceeding. whenever new information indicates of the child to take that action; that the emergency situation has ended; (9) If the child is believed to reside or § 23.116 What happens after a petition for and be domiciled on a reservation where the transfer is made? (3) At any court hearing during the Tribe exercises exclusive jurisdiction Upon receipt of a transfer petition, the emergency proceeding, determine over child-custody matters, a statement State court must ensure that the Tribal whether the emergency removal or of efforts that have been made and are court is promptly notified in writing of placement is no longer necessary to being made to contact the Tribe and the transfer petition. This notification prevent imminent physical damage or transfer the child to the Tribe’s may request a timely response regarding harm to the child. jurisdiction; and whether the Tribal court wishes to (4) Immediately terminate (or ensure (10) A statement of the efforts that decline the transfer. that the agency immediately terminates) have been taken to assist the parents or § 23.117 What are the criteria for ruling on the emergency proceeding once the Indian custodians so the Indian child transfer petitions? court or agency possesses sufficient may safely be returned to their custody. Upon receipt of a transfer petition evidence to determine that the (e) An emergency proceeding from an Indian child’s parent, Indian emergency removal or placement is no regarding an Indian child should not be custodian, or Tribe, the State court must longer necessary to prevent imminent continued for more than 30 days unless transfer the child-custody proceeding physical damage or harm to the child. the court makes the following unless the court determines that transfer (c) An emergency proceeding can be determinations: is not appropriate because one or more terminated by one or more of the (1) Restoring the child to the parent or following actions: of the following criteria are met: Indian custodian would subject the (a) Either parent objects to such (1) Initiation of a child-custody child to imminent physical damage or proceeding subject to the provisions of transfer; harm; (b) The Tribal court declines the ICWA; (2) The court has been unable to transfer; or (2) Transfer of the child to the transfer the proceeding to the (c) Good cause exists for denying the jurisdiction of the appropriate Indian jurisdiction of the appropriate Indian transfer. Tribe; or Tribe; and (3) Restoring the child to the parent or (3) It has not been possible to initiate § 23.118 How is a determination of ‘‘good Indian custodian. a ‘‘child-custody proceeding’’ as defined cause’’ to deny transfer made? (d) A petition for a court order in § 23.2. (a) If the State court believes, or any authorizing the emergency removal or party asserts, that good cause to deny continued emergency placement, or its § 23.114 What are the requirements for transfer exists, the reasons for that belief determining improper removal? accompanying documents, should or assertion must be stated orally on the contain a statement of the risk of (a) If, in the course of any child- record or provided in writing on the imminent physical damage or harm to custody proceeding, any party asserts or record and to the parties to the child- the Indian child and any evidence that the court has reason to believe that the custody proceeding. the emergency removal or placement Indian child may have been improperly (b) Any party to the child-custody continues to be necessary to prevent removed from the custody of his or her proceeding must have the opportunity such imminent physical damage or parent or Indian custodian, or that the to provide the court with views harm to the child. The petition or its Indian child has been improperly regarding whether good cause to deny accompanying documents should also retained (such as after a visit or other transfer exists. contain the following information: temporary relinquishment of custody), (c) In determining whether good cause (1) The name, age, and last known the court must expeditiously determine exists, the court must not consider: address of the Indian child; whether there was improper removal or (1) Whether the foster-care or (2) The name and address of the retention. termination-of-parental-rights child’s parents and Indian custodians, if (b) If the court finds that the Indian proceeding is at an advanced stage if the any; child was improperly removed or Indian child’s parent, Indian custodian, (3) The steps taken to provide notice retained, the court must terminate the or Tribe did not receive notice of the to the child’s parents, custodians, and proceeding and the child must be child-custody proceeding until an Tribe about the emergency proceeding; returned immediately to his or her advanced stage; (4) If the child’s parents and Indian parent or Indian custodian, unless (2) Whether there have been prior custodians are unknown, a detailed returning the child to his parent or proceedings involving the child for explanation of what efforts have been Indian custodian would subject the which no petition to transfer was filed;

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(3) Whether transfer could affect the conditions in the home and the requests anonymity, a Tribe receiving placement of the child; likelihood that continued custody of the such information must keep relevant (4) The Indian child’s cultural child will result in serious emotional or documents and information connections with the Tribe or its physical damage to the particular child confidential. reservation; or who is the subject of the child-custody (c) State courts must ensure that the (5) Socioeconomic conditions or any proceeding. placement for the Indian child complies negative perception of Tribal or BIA (d) Without a causal relationship with §§ 23.129–23.132. social services or judicial systems. identified in paragraph (c) of this (d) The basis for any State-court section, evidence that shows only the § 23.125 How is consent obtained? decision to deny transfer should be existence of community or family (a) A parent’s or Indian custodian’s stated orally on the record or in a poverty, isolation, single parenthood, consent to a voluntary termination of written order. custodian age, crowded or inadequate parental rights or to a foster-care, housing, substance abuse, or preadoptive, or adoptive placement § 23.119 What happens after a petition for must be executed in writing and transfer is granted? nonconforming social behavior does not by itself constitute clear and convincing recorded before a court of competent (a) If the Tribal court accepts the evidence or evidence beyond a jurisdiction. transfer, the State court should reasonable doubt that continued (b) Prior to accepting the consent, the expeditiously provide the Tribal court custody is likely to result in serious court must explain to the parent or with all records related to the emotional or physical damage to the Indian custodian: proceeding, including, but not limited child. (1) The terms and consequences of the to, the pleadings and any court record. consent in detail; and (b) The State court should work with § 23.122 Who may serve as a qualified (2) The following limitations, the Tribal court to ensure that the expert witness? applicable to the type of child-custody transfer of the custody of the Indian (a) A qualified expert witness must be proceeding for which consent is given, child and of the proceeding is qualified to testify regarding whether on withdrawal of consent: accomplished smoothly and in a way the child’s continued custody by the (i) For consent to foster-care that minimizes the disruption of parent or Indian custodian is likely to placement, the parent or Indian services to the family. result in serious emotional or physical custodian may withdraw consent for Adjudication of Involuntary damage to the child and should be any reason, at any time, and have the Proceedings qualified to testify as to the prevailing child returned; or social and cultural standards of the (ii) For consent to termination of § 23.120 How does the State court ensure Indian child’s Tribe. A person may be parental rights, the parent or Indian that active efforts have been made? designated by the Indian child’s Tribe as custodian may withdraw consent for (a) Prior to ordering an involuntary being qualified to testify to the any reason, at any time prior to the foster-care placement or termination of prevailing social and cultural standards entry of the final decree of termination parental rights, the court must conclude of the Indian child’s Tribe. and have the child returned; or that active efforts have been made to (b) The court or any party may request (iii) For consent to an adoptive prevent the breakup of the Indian family the assistance of the Indian child’s Tribe placement, the parent or Indian and that those efforts have been or the BIA office serving the Indian custodian may withdraw consent for unsuccessful. child’s Tribe in locating persons any reason, at any time prior to the (b) Active efforts must be documented qualified to serve as expert witnesses. entry of the final decree of adoption, in detail in the record. (c) The social worker regularly and have the child returned. assigned to the Indian child may not (c) The court must certify that the § 23.121 What are the applicable standards serve as a qualified expert witness in terms and consequences of the consent of evidence? child-custody proceedings concerning were explained on the record in detail (a) The court must not order a foster- the child. in English (or the language of the parent care placement of an Indian child unless or Indian custodian, if English is not the § 23.123 [Reserved] clear and convincing evidence is primary language) and were fully presented, including the testimony of Voluntary Proceedings understood by the parent or Indian one or more qualified expert witnesses, custodian. demonstrating that the child’s § 23.124 What actions must a State court (d) Where confidentiality is requested undertake in voluntary proceedings? continued custody by the child’s parent or indicated, execution of consent need or Indian custodian is likely to result in (a) The State court must require the not be made in a session of court open serious emotional or physical damage to participants in a voluntary proceeding to the public but still must be made the child. to state on the record whether the child before a court of competent jurisdiction (b) The court must not order a is an Indian child, or whether there is in compliance with this section. termination of parental rights for an reason to believe the child is an Indian (e) A consent given prior to, or within Indian child unless evidence beyond a child, as provided in § 23.107. 10 days after, the birth of an Indian reasonable doubt is presented, including (b) If there is reason to believe the child is not valid. the testimony of one or more qualified child is an Indian child, the State court expert witnesses, demonstrating that the must ensure that the party seeking § 23.126 What information must a consent child’s continued custody by the child’s placement has taken all reasonable steps document contain? parent or Indian custodian is likely to to verify the child’s status. This may (a) If there are any conditions to the result in serious emotional or physical include contacting the Tribe of which it consent, the written consent must damage to the child. is believed the child is a member (or clearly set out the conditions. (c) For a foster-care placement or eligible for membership and of which (b) A written consent to foster-care termination of parental rights, the the biological parent is a member) to placement should contain, in addition evidence must show a causal verify the child’s status. As described in to the information specified in relationship between the particular § 23.107, where a consenting parent paragraph (a) of this section, the name

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and birthdate of the Indian child; the to the request in applying the by an Indian organization which has a name of the Indian child’s Tribe; the preferences. program suitable to meet the child’s Tribal enrollment number for the parent (c) The placement preferences must needs. and for the Indian child, where known, be applied in any foster-care, (c) If the Indian child’s Tribe has or some other indication of the child’s preadoptive, or adoptive placement established by resolution a different membership in the Tribe; the name, unless there is a determination on the order of preference than that specified address, and other identifying record that good cause under § 23.132 in ICWA, the Tribe’s placement information of the consenting parent or exists to not apply those placement preferences apply, so long as the Indian custodian; the name and address preferences. placement is the least-restrictive setting of the person or entity, if any, who appropriate to the particular needs of arranged the placement; and the name § 23.130 What placement preferences the Indian child, as provided in apply in adoptive placements? and address of the prospective foster paragraph (a) of this section. parents, if known at the time. (a) In any adoptive placement of an (d) The court must, where Indian child under State law, where the appropriate, also consider the § 23.127 How is withdrawal of consent to Indian child’s Tribe has not established preference of the Indian child or the a foster-care placement achieved? a different order of preference under Indian child’s parent. (a) The parent or Indian custodian paragraph (b) of this section, preference may withdraw consent to voluntary must be given in descending order, as § 23.132 How is a determination of ‘‘good foster-care placement at any time. listed below, to placement of the child cause’’ to depart from the placement (b) To withdraw consent, the parent with: preferences made? or Indian custodian must file a written (1) A member of the Indian child’s (a) If any party asserts that good cause document with the court or otherwise extended family; not to follow the placement preferences testify before the court. Additional (2) Other members of the Indian exists, the reasons for that belief or methods of withdrawing consent may be child’s Tribe; or assertion must be stated orally on the available under State law. (3) Other Indian families. record or provided in writing to the (c) When a parent or Indian custodian (b) If the Indian child’s Tribe has parties to the child-custody proceeding withdraws consent to a voluntary foster- established by resolution a different and the court. care placement, the court must ensure order of preference than that specified (b) The party seeking departure from that the Indian child is returned to that in ICWA, the Tribe’s placement the placement preferences should bear parent or Indian custodian as soon as preferences apply. the burden of proving by clear and practicable. (c) The court must, where convincing evidence that there is ‘‘good appropriate, also consider the cause’’ to depart from the placement § 23.128 How is withdrawal of consent to preferences. a termination of parental rights or adoption placement preference of the Indian child or Indian child’s parent. (c) A court’s determination of good achieved? cause to depart from the placement (a) A parent may withdraw consent to § 23.131 What placement preferences preferences must be made on the record voluntary termination of parental rights apply in foster-care or preadoptive or in writing and should be based on at any time prior to the entry of a final placements? one or more of the following decree of termination. (a) In any foster-care or preadoptive considerations: (b) A parent or Indian custodian may placement of an Indian child under (1) The request of one or both of the withdraw consent to voluntary adoption State law, including changes in foster- Indian child’s parents, if they attest that at any time prior to the entry of a final care or preadoptive placements, the they have reviewed the placement decree of adoption. child must be placed in the least- options, if any, that comply with the (c) To withdraw consent prior to the restrictive setting that: order of preference; entry of a final decree of adoption, the (1) Most approximates a family, taking (2) The request of the child, if the parent or Indian custodian must file a into consideration sibling attachment; child is of sufficient age and capacity to written document with the court or (2) Allows the Indian child’s special understand the decision that is being otherwise testify before the court. needs (if any) to be met; and made; Additional methods of withdrawing (3) Is in reasonable proximity to the (3) The presence of a sibling consent may be available under State Indian child’s home, extended family, attachment that can be maintained only law. or siblings. through a particular placement; (d) The court in which the withdrawal (b) In any foster-care or preadoptive (4) The extraordinary physical, of consent is filed must promptly notify placement of an Indian child under mental, or emotional needs of the Indian the person or entity who arranged any State law, where the Indian child’s child, such as specialized treatment voluntary preadoptive or adoptive Tribe has not established a different services that may be unavailable in the placement of such filing, and the Indian order of preference under paragraph (c) community where families who meet child must be returned to the parent or of this section, preference must be the placement preferences live; Indian custodian as soon as practicable. given, in descending order as listed (5) The unavailability of a suitable Dispositions below, to placement of the child with: placement after a determination by the (1) A member of the Indian child’s court that a diligent search was § 23.129 When do the placement extended family; conducted to find suitable placements preferences apply? (2) A foster home that is licensed, meeting the preference criteria, but none (a) In any preadoptive, adoptive, or approved, or specified by the Indian has been located. For purposes of this foster-care placement of an Indian child, child’s Tribe; analysis, the standards for determining the placement preferences specified in (3) An Indian foster home licensed or whether a placement is unavailable § 23.130 and § 23.131 apply. approved by an authorized non-Indian must conform to the prevailing social (b) Where a consenting parent licensing authority; or and cultural standards of the Indian requests anonymity in a voluntary (4) An institution for children community in which the Indian child’s proceeding, the court must give weight approved by an Indian Tribe or operated parent or extended family resides or

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with which the Indian child’s parent or invalidate an action for foster-care the waiver and explain how the waiver extended family members maintain placement or termination of parental may be revoked. social and cultural ties. rights under state law where it is alleged (2) The court must certify that the (d) A placement may not depart from that 25 U.S.C. 1911, 1912, or 1913 has terms and consequences of the waiver the preferences based on the been violated: and how the waiver may be revoked socioeconomic status of any placement (1) An Indian child who is or was the were explained in detail in English (or relative to another placement. subject of any action for foster-care the language of the parent or Indian (e) A placement may not depart from placement or termination of parental custodian, if English is not the primary the preferences based solely on ordinary rights; language), and were fully understood by bonding or attachment that flowed from (2) A parent or Indian custodian from the parent or Indian custodian. time spent in a non-preferred placement whose custody such child was removed; (3) Where confidentiality is requested that was made in violation of ICWA. and or indicated, execution of the waiver (3) The Indian child’s Tribe. need not be made in a session of court Access (b) Upon a showing that an action for open to the public but still must be § 23.133 Should courts allow participation foster-care placement or termination of made before a court of competent by alternative methods? parental rights violated any provision of jurisdiction in compliance with this If it possesses the capability, the court 25 U.S.C. 1911, 1912, or 1913, the court section. should allow alternative methods of must determine whether it is (4) The biological parent or Indian participation in State-court child- appropriate to invalidate the action. custodian may revoke the waiver at any custody proceedings involving an (c) To petition for invalidation, there time by filing with the court a written Indian child, such as participation by is no requirement that the petitioner’s notice of revocation. telephone, videoconferencing, or other rights under ICWA were violated; (5) A revocation of the right to receive methods. rather, a petitioner may challenge the notice does not affect any child-custody action based on any violations of 25 proceeding that was completed before § 23.134 Who has access to reports and U.S.C. 1911, 1912, or 1913 during the the filing of the notice of revocation. records during a proceeding? course of the child-custody proceeding. Recordkeeping Each party to an emergency proceeding or a foster-care-placement or § 23.138 What are the rights to information § 23.140 What information must States about adoptees’ Tribal affiliations? termination-of-parental-rights furnish to the Bureau of Indian Affairs? proceeding under State law involving an Upon application by an Indian who (a) Any State court entering a final Indian child has a right to timely has reached age 18 who was the subject adoption decree or order in any examine all reports and other of an adoptive placement, the court that voluntary or involuntary Indian-child documents filed or lodged with the entered the final decree of adoption adoptive placement must furnish a copy court upon which any decision with must inform such individual of the of the decree or order within 30 days to respect to such action may be based. Tribal affiliations, if any, of the the Bureau of Indian Affairs, Chief, individual’s biological parents and Division of Human Services, 1849 C § 23.135 [Reserved] provide such other information Street NW., Mail Stop 4513 MIB, Post-Trial Rights & Responsibilities necessary to protect any rights, which Washington, DC 20240, along with the may include Tribal membership, following information, in an envelope § 23.136 What are the requirements for resulting from the individual’s Tribal marked ‘‘Confidential’’: vacating an adoption based on consent relationship. (1) Birth name and birthdate of the having been obtained through fraud or duress? § 23.139 Must notice be given of a change Indian child, and Tribal affiliation and in an adopted Indian child’s status? name of the Indian child after adoption; (a) Within two years after a final (2) Names and addresses of the (a) If an Indian child has been decree of adoption of any Indian child biological parents; adopted, the court must notify, by by a State court, or within any longer (3) Names and addresses of the registered or certified mail with return period of time permitted by the law of adoptive parents; the State, the State court may invalidate receipt requested, the child’s biological (4) Name and contact information for the voluntary adoption upon finding parent or prior Indian custodian and the any agency having files or information that the parent’s consent was obtained Indian child’s Tribe whenever: relating to the adoption; by fraud or duress. (1) A final decree of adoption of the (5) Any affidavit signed by the (b) Upon the parent’s filing of a Indian child has been vacated or set biological parent or parents asking that petition to vacate the final decree of aside; or their identity remain confidential; and adoption of the parent’s Indian child, (2) The adoptive parent has (6) Any information relating to Tribal the court must give notice to all parties voluntarily consented to the termination membership or eligibility for Tribal to the adoption proceedings and the of his or her parental rights to the child. membership of the adopted child. Indian child’s Tribe and must hold a (b) The notice must state the current (b) If a State agency has been hearing on the petition. name, and any former name, of the designated as the repository for all (c) Where the court finds that the Indian child, inform the recipient of the State-court adoption information and is parent’s consent was obtained through right to petition for return of custody of fulfilling the duties described in fraud or duress, the court must vacate the child, and provide sufficient paragraph (a) of this section, the State the final decree of adoption, order the information to allow the recipient to courts in that State need not fulfill those consent revoked, and order that the participate in any scheduled hearings. same duties. child be returned to the parent. (c) A parent or Indian custodian may waive his or her right to such notice by § 23.141 What records must the State § 23.137 Who can petition to invalidate an executing a written waiver of notice and maintain? action for certain ICWA violations? filing the waiver with the court. (a) The State must maintain a record (a) Any of the following may petition (1) Prior to accepting the waiver, the of every voluntary or involuntary foster- any court of competent jurisdiction to court must explain the consequences of care, preadoptive, and adoptive

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placement of an Indian child and make and Budget under 44 U.S.C. 3501 et seq. matter or subsequent proceedings the record available within 14 days of a and assigned OMB Control Number affecting the custody or placement of request by an Indian child’s Tribe or the 1076–0186. Response is required to the same child. Secretary. obtain a benefit. A Federal agency may Severability (b) The record must contain, at a not conduct or sponsor, and you are not minimum, the petition or complaint, all required to respond to, a collection of § 23.144 What happens if some portion of substantive orders entered in the child- information unless the form or this part is held to be invalid by a court of custody proceeding, the complete regulation requesting the information competent jurisdiction? record of the placement determination displays a currently valid OMB Control If any portion of this part is (including, but not limited to, the Number. Send comments regarding this determined to be invalid by a court of findings in the court record and the collection of information, including competent jurisdiction, the other social worker’s statement), and, if the suggestions for reducing the burden, to portions of the part remain in effect. For placement departs from the placement the Information Collection Clearance example, the Department has preferences, detailed documentation of Officer—Indian Affairs, 1849 C Street considered separately whether the the efforts to comply with the placement NW., Washington, DC 20240. preferences. provisions of this part apply to (c) A State agency or agencies may be Effective Date involuntary and voluntary proceedings; designated to be the repository for this thus, if a particular provision is held to § 23.143 How does this subpart apply to be invalid as to one type of proceeding, information. The State court or agency pending proceedings? should notify the BIA whether these it is the Department’s intent that it records are maintained within the court None of the provisions of this subpart remains valid as to the other type of system or by a State agency. affects a proceeding under State law for proceeding. foster-care placement, termination of Dated: June 6, 2016. § 23.142 How does the Paperwork parental rights, preadoptive placement, Reduction Act affect this subpart? or adoptive placement that was initiated Lawrence S. Roberts, The collections of information prior to December 12, 2016, but the Acting Assistant Secretary—Indian Affairs. contained in this part have been provisions of this subpart apply to any [FR Doc. 2016–13686 Filed 6–13–16; 8:45 am] approved by the Office of Management subsequent proceeding in the same BILLING CODE 4310–02–P

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