New regulations for Indian Child Welfare Act promise ‘clarity’ for Alaska tribes

“Genuine kunik” from 2007 Nalukataq dance in Barrow. ( Creative Commons photo by Floyd Davidson)
“Genuine kunik” from 2007 Nalukataq dance in Barrow. ( Creative Commons photo by Floyd Davidson)

New regulations are coming for a federal law created to keep Alaska Native and American Indian children in foster care within their family and tribes. Tribal sovereignty experts say the changes could have major implications for foster care in Alaska.

The Indian Child Welfare Act is a federal law that has been a constant source of contention — and endless legal battles — since it was passed in 1978. During the second day of presentations on tribal justice at the Kawerak Rural Providers Conference in Nome, John Bioff with Kawerak’s tribal court office outlined those changes revealed in March, which he said would be felt nationwide.

“There have been gaps and confusions and some bad case law that’s been made since the ICWA law was enacted,” Bioff said. “And I think the new ICWA laws are a positive development that seek to add a lot of clarification to the older ICWA law in areas that have been problematic in Alaska.”

With the vast majority of tribal court cases in the Bering Strait and Norton Sound region relating to child protection, Bioff said the new regulations would clarify what the rules are for transferring a case to a tribal court.

“The regulations spell out what are grounds to deny a transfer to a tribal court; for instance, how far along the case is in the state court is not a legitimate grounds to deny a transfer,” Bioff said.

“Overall, in our region, we work very well with the Office of Children’s Services, but over time, since I’ve been doing this work, I think overall this is going to clarify a lot.”

Bioff said the new regulations not only clarify uncertainties in old ICWA law, but they also present a host of new directives for state agencies and courts would have to comply with in order to protect family and tribal placement for foster kids.

The new ICWA regulations are far from law; the Department of Interior only just ended a comment session, and legal maneuvering for those both for and against the new rules could push their finalization anywhere from months to years off. Still, Bioff said, the process may be slow, but it’s one that’s trending toward progress.