ICWA guidelines sustained by Court


Guidelines supplementing the Indian Child welfare act were sustained in a legal battle between the Bureau of Indian Affairs (BIA) and the National Council for Adoption in another attempt to weaken ICWA’s power.

In 2015, guidelines created by the BIA to assist government agencies and courts in better understanding how to apply ICWA were falsely criticized as binding law. On Tuesday, October 20th, the federal court prevented the guidelines from being withdrawn. The purpose of the guidelines is in defining what the legislation means in terms of custody and other legal issues pertaining to American Indian Children. Yet, the National Council for Adoption and Building Arizona families wanted them erased.

Federal Judge Gerald Bruce Lee denied the National Council for Adoption and Building Arizona Families standing to withdraw ICWA guidelines put forth in 2015 by the BIA.

The ICWA was passed in 1978 by Congress to address and prevent the alarmingly frequent abuses taking place against American Indian children in State foster care systems, by placing them in foster care that was on reservation and tribally managed. The ICWA also attempts to ensure that a child’s placement within foster care would be with American Indian families.

While it is a federal law, the ICWA continues to be violated, where families or tribal members who are willing to adopt are ignored, resulting in their placement in non-Indian homes. In light of this, the BIA released a set of guidelines in February 2015 to provide suggestions about how courts and agencies should engage with custody, adjudications, and post-trial rights relating to ICWA cases.

In an attempt to have them withdrawn, the National Council for Adoption and Building Arizona Families argued that the recently added guidelines violate APA (Administrative Procedure Act, 5. U.S.C, 551-706) by existing as a policy that forces other agencies to abide by guidelines. Both adoption agencies went as far as blaming the guidelines for time spent and money lost through abiding by them.

Federal Judge Gerald Bruce Lee reasoned that the National Council for Adoption and Building Arizona Families did not have standing to ask for the withdrawal of the BIA’s February guidelines.  In his decision he said, “Plaintiffs [National Council/Arizona Families] cannot assert injury in fact for voluntary compliance with guidelines they acknowledged had no binding effect and no enforcement mechanisms.”

The decision asserted that the resources lost by abiding by BIA guidelines cannot be sued for, since the adoption groups were never forced to follow them. Furthermore, while the guidelines remain as suggestions for agencies and courts, they do not have to be binding or abide by APA standards.

This legal victory, in defense of guidelines seeking to ensure ICWA’s adherence, is a reminder of our much needed vigilance in the continual struggle to protect the rights of American Indian children.


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