Feds strengthen ICWA guidelines

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Kevin Wasburn Photo courtesy of Indian Country Today

It looks like Washington D.C. is listening. In response to the continual and flagrant violations of the Indian Child Welfare Act (ICWA) in the state of South Dakota (in particular) and elsewhere, the Bureau of Indian Affairs released updated ICWA guidelines.

After spending the last decade investigating, reporting on the deep-seeded problems in South Dakota, while lobbying members of the federal government, there is little doubt that Lakota People’s Law Project, in its partnership with members of all nine of the Lakota tribes in South Dakota has worked to bring about this significant victory in the effort to end the slow genocide that continues in South Dakota.

ICWA was enacted in 1978 and states that Indian children who are taken from their homes by state agencies must be placed in foster care facilities within their tribes.  Unfortunately, this act has been dishonored numerous times throughout the nation, most notably by the government of South Dakota.

Even though youth population comprises less than 15 percent of the state’s demographic makeup they account for 54 percent of the foster care population, according to a Congressional report prepared by Lakota People’s Law Project. South Dakota has repeatedly taken Indian children away from their families and their tribes, placing them in non-Native foster care and thereby removing these children from their culture and heritage.

In May 2013, LPLP, in collaboration with Standing Rock and Oglala leaders, organized an ICWA summit to discuss the widespread problem and the racially biased state institutions that were reaping financial benefits by ignoring federal law and preying upon the most vulnerable population.

There, the Bureau of Indian Affairs and ICWA program directors discussed the problems concerning ICWA and possible solutions to these problems. Assistant Secretary for Indian Affairs Kevin Washburn was in attendance.

Yesterday, Washburn announced that a new set of guidelines would be released to ensure that all Native American families would be protected under the rights of ICWA, and he made particular mention of the situation in South Dakota as one of the reasons the federal government felt the need to release newer, more robust guidelines.

Many of these new guidelines are stricter and are meant to provide as much protection for Indian children as possible. For example, if a child is taken, that child must be treated as an Indian child until he or she is proven to be otherwise.

This will promote officials to always follow the rules of ICWA. A person testifying in an ICWA-related case must also be an expert on Indian culture and customs in order to be considered a qualified witness, as they will have a better understanding of whether or not the child is really in any danger staying with his or her Indian parents or guardians.

The new guidelines also state that the emergency removals and placement of Indian children must be limited and that a child should only be removed if he or she is in a situation involving imminent danger or harm. Often times the South Dakota state government has sited “being poor” as harmful. The new guidelines not only prevent courts from taking children away based on socioeconomic status, but give a strict definition of what is to be considered harmful:

Imminent physical damage or harm means present or impending risk of serious bodily injury or death that will result in severe harm if safety intervention does not occur.

This comes in direct response the the bevy of flimsy excuses that members of the South Dakota DSS have used in seizing Indian children from their parents and tribes at a staggering rate.

The updated guidelines also give more power to the tribes; for instance the tribes alone have the discretion to determine tribal membership.  When determining a child’s tribe, the child’s guardians and tribe must always be notified before each proceeding, and the tribe can intervene at any time. The guidelines also state:

The updated guidelines establish that an Indian child, parent or Indian custodian, or tribe may petition to invalidate an action if the Act or guidelines have been violated, regardless of which party’s rights were violated. This approach promotes compliance with ICWA and reflects that ICWA is intended to protect the rights of each of these parties.

By giving more power to the tribes, the Bureau of Indian Affairs is helping to ensure that government officials will not persist in their illegal seizure of Indian children.

It is crucial for officials throughout the nation and particularly in South Dakota to honor ICWA and to protect the rights of Native families. These children are sacred. They are the future of the tribes, and it is important for them to be brought up in their heritage so that indigenous people in the United States can once again flourish.

To read the new ICWA guidelines, go to http://www.bia.gov/cs/groups/public/documents/text/idc1-029447.pdf.

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