When the Indian Child Welfare Act (ICWA) was passed in 1978, the Bureau of Indian Affairs (BIA) drafted guidelines for best practices to accompany the law. In adoption cases, adoption practitioners and attorneys seek to balance those guidelines with each state’s adoption laws and the individual rights of an intending birth parent.

After the Baby Veronica Supreme Court verdict in summer 2013 (see below for related articles) – which left many in the Native American community unhappy – the BIA decided to revisit their ICWA guidelines and released revisions last month.

The American Academy of Adoption Attorneys (AAAA), a national organization of attorneys who specialize in adoption, shared their disappointment in the new guidelines via a press release (view the PDF or excerpt below):

“Several months ago, the Department of Interior through the Bureau of Indian Affairs advised our Academy and other interested child welfare groups that there would be an opportunity to provide comments and feedback to any proposed revisions to the BIA’s federal ICWA guidelines. However, in what appears to be a purposeful effort to bypass input from our Academy, the public, and other child-focused organizations, the BIA recently published amended guidelines and made them effective immediately.

As distinguished professionals in the field of adoption and foster care, we and many other groups who work in the courts and the child welfare system are appalled by this surprise publication. The federal government’s unwillingness to hear from those groups who have been in the field for many years working directly with those families and children who will be negatively impacted by these guidelines is alarming. 

As a nonprofit organization comprised of child welfare experts, we are committed to the ethical practice of adoption law. It is our mission to support and advocate for the rights of families and to consider the interest of all parties, especially children. Sadly, there are entire sections of the newly published BIA guidelines that completely disregard the best interest of children.

We are shocked by the process by which these guidelines were promulgated and published, and the blatant failure to provide legal protections for children, especially children who are in the foster care system. For example, cases involving the removal of a child from his or her placement (even if the child will suffer serious harm), the court is directed not to consider attachment or bonding issues. The new guidelines also state that the “best interest of the child” is not a consideration, thus treating them as possessions as opposed to human beings with rights of their own.

As long-time protectors of the best interest of children, the Academy is stunned by the lack of due process in formulating these new guidelines. While the guidelines are only recommendations and do not have the authority of federal enacted law or federal regulations, if these guidelines are given weight by the courts and child welfare agencies, children will most definitely be hurt.

We are committed to ensuring that every child has the best chance for a positive and fair outcome in the judicial system. We urge the Department of Interior to reevaluate how these guidelines were drafted and issued, and allow the Academy and other organizations who work in the field with families and children to be involved in the process.”

American Adoptions is committed to following ICWA legal procedures in all of our adoptions and provides ongoing training for our staff members via ICWA and adoption experts. Of the adoptions at our agency, only about 5 percent involve a child with Native American heritage. Additionally, each time an adoptive family is presented with an adoption opportunity with a birth mother, they will be briefed on the financial, legal and birth father situation of the adoption, including any details related to ICWA. Please contact us at 1-800-ADOPTION with any questions on this topic.

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