Indian Child Welfare Act Proceedings, 38777-38876 [2016-13686]

Agencies

• DEPARTMENT OF THE INTERIOR
• Bureau of Indian Affairs

[Federal Register Volume 81, Number 114 (Tuesday, June 14, 2016)]
[Rules and Regulations]
[Pages 38777-38876]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-13686]



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Vol. 81

Tuesday,

No. 114

June 14, 2016

Part II





Department of the Interior





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Bureau of Indian Affairs





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25 CFR Part 23





Indian Child Welfare Act Proceedings; Final Rule

Federal Register / Vol. 81 , No. 114 / Tuesday, June 14, 2016 / Rules 
and Regulations

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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

25 CFR Part 23

[K00103 12/13 A3A10; 134D0102DR-DS5A300000-DR.5A311.IA000113]
RIN 1076-AF25


Indian Child Welfare Act Proceedings

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Final rule.

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SUMMARY: This final rule adds a new subpart to the Department of the 
Interior's (Department) regulations implementing the Indian Child 
Welfare Act (ICWA), to improve ICWA implementation. The final rule 
addresses requirements for State courts in ensuring implementation of 
ICWA in Indian child-welfare proceedings and requirements for States to 
maintain records under ICWA.

DATES: This rule is effective on December 12, 2016.

FOR FURTHER INFORMATION CONTACT: Ms. Elizabeth Appel, Office of 
Regulatory Affairs & Collaborative Action--Indian Affairs, U.S. 
Department of the Interior, 1849 C Street NW., MS 3642, Washington, DC 
20240, (202) 273-4680; elizabeth.appel@bia.gov.

SUPPLEMENTARY INFORMATION:
I. Executive Summary
    A. Introduction
    B. Overview of Final Rule
II. Background
    A. Background Regarding Passage of ICWA
    B. Overview of ICWA's Provisions
    C. Need for These Regulations
    D. The Department's Implementation of ICWA
III. Authority for Regulations
    A. Statements Made in the 1979 Guidelines
    B. Comments Agreeing That Interior May Issue a Binding 
Regulation
    C. Comments Disagreeing That the Department Has Authority To 
Issue a Binding Regulation
    1. Agency Expertise
    2. Chevron Deference
    3. Primary Responsibility for Interpreting the Act
    4. Tenth Amendment and Federalism
    5. Federalism Executive Order
    6. Change in Position From Statements Made in 1979
    7. Timeliness
IV. Discussion of Rule and Comments
    A. Public Comment and Tribal Consultation Process
    1. Fairness in Proposing the Rule
    2. Locations of Meetings/Consultations
    B. Definitions
    1. ``Active Efforts''
    2. ``Agency''
    3. ``Child-Custody proceeding''
    4. ``Continued Custody'' and ``Custody''
    5. ``Domicile''
    6. ``Emergency Proceeding''
    7. ``Extended Family Member''
    8. ``Hearing''
    9. ``Imminent Physical Damage or Harm''
    10. ``Indian Child''
    11. ``Indian Child's Tribe''
    12. ``Indian Custodian''
    13. ``Parent''
    14. ``Reservation''
    15. ``Status Offense''
    16. ``Tribal Court''
    17. ``Upon Demand''
    18. ``Voluntary Placement,'' ``Voluntary Proceeding,'' and 
``Involuntary Proceeding''
    19. Suggested New Definitions
    a. ``Best Interests''
    b. Other Suggested Definitions
    C. Applicability
    1. ``Child-Custody Proceeding'' and ``Hearing'' Definitions
    2. Juvenile Delinquency Cases
    3. Existing Indian Family Exception
    4. Other Applicability Provisions
    D. Inquiry and Verification
    1. How to Contact a Tribe
    2. Inquiry
    3. Treating Child as an ``Indian Child'' Pending Verification
    4. Verification From the Tribe
    5. Tribe Makes the Determination as to Whether a Child is a 
Member of the Tribe
    E. Jurisdiction: Requirement To Dismiss Action
    F. Notice
    1. Notice, Generally
    2. Certified Mail v. Registered Mail
    3. Contents of Notice
    4. Notice of Change in Status
    5. Notice to More Than One Tribe
    6. Notice for Each Proceeding
    7. Notice in Interstate Placements
    8. Notice in Voluntary Proceedings
    G. Active Efforts
    1. Applicability of Active Efforts
    a. Active Efforts To Verify Child's Tribe
    b. Active Efforts To Avoid Breakup in Emergency Proceedings
    c. Active Efforts To Avoid the Need to Remove the Child
    d. Active Efforts To Establish Paternity
    e. Active Efforts To Apply for Tribal Membership
    f. Active Efforts To Identify Preferred Placements
    2. Timing of Active Efforts
    a. Active Efforts Begin Immediately and During Investigation
    b. Time Limits for Active Efforts
    3. Documentation of Active Efforts
    4. Other Suggested Edits for Active Efforts
    H. Emergency Proceedings
    1. Standard of Evidence for Emergency Proceedings
    2. Placement Preferences in Emergency Proceedings
    3. 30-Day Limit on Temporary Custody
    4. Emergency Proceedings--Timing of Notice and Requirements for 
Evidence
    5. Mandatory Dismissal of Emergency Proceedings
    6. Emergency Proceedings Subsection-by-Subsection
    7. Emergency Proceedings--Miscellaneous
    I. Improper Removal
    J. Transfer to Tribal Court
    1. Petitions for Transfer of Proceeding
    2. Criteria for Ruling on Transfer
    3. Good Cause To Deny Transfer
    4. What Happens When Petition for Transfer Is Made
    K. Adjudication
    1. Access to Reports and Records
    2. Standard of Evidence for Foster-Care Placement and 
Termination
    a. Standard of Evidence for Foster-Care Placement
    b. Standard of Evidence for Termination
    c. Causal Relationship
    d. Single Factor
    3. Qualified Expert Witness
    L. Voluntary Proceedings
    1. Applicability of ICWA to Voluntary Proceedings--In General
    2. Applicability of Notice Requirements to Voluntary Proceedings
    3. Applicability of Placement Preferences to Voluntary 
Proceedings
    4. Applicability of Other ICWA Provisions to Voluntary 
Proceedings
    5. Applicability of Placements Where Return is ``Upon Demand''
    6. Consent in Voluntary Proceedings
    7. Consent Document Contents
    8. Withdrawal of Consent
    9. Confidentiality and Anonymity in Voluntary Proceedings
    M. Dispositions
    1. When Placement Preferences Apply
    2. What Placement Preferences Apply, Generally
    3. Placement Preferences in Adoptive Settings
    4. Placement Preferences in Foster or Preadoptive Proceedings
    5. Good Cause To Depart From Placement Preferences
    a. Support and Opposition for Limitations on Good Cause
    b. Request of Parents as Good Cause
    c. Request of the Child as Good Cause
    d. Ordinary Bonding and Attachment
    e. Unavailability of Placement as Good Cause
    f. Other Suggestions Regarding Good Cause To Depart From 
Placement Preferences
    6. Placement Preferences Presumed To Be in the Child's Best 
Interest
    N. Post-Trial Rights and Recordkeeping
    1. Petition To Vacate Adoption
    2. Who Can Make a Petition To Invalidate an Action
    3. Rights of Adult Adoptees
    4. Data Collection
    O. Effective Date and Severability
    P. Miscellaneous
    1. Purpose of Subpart
    2. Interaction With State Laws
    3. Time Limits and Extensions
    4. Participation by Alternative Methods (Telephone, 
Videoconferencing, etc.)
    5. Adoptive Couple v. Baby Girl and Tununak II
    6. Enforcement
    7. Unrecognized Tribes
    8. Foster Homes
    9. Other Miscellaneous
V. Summary of Final Rule and Changes From Proposed Rule to Final 
Rule
VI. Procedural Requirements



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    Note:  This preamble uses the prefix ``FR Sec.  '' to denote 
regulatory sections in this final rule, and ``PR Sec.  '' to denote 
regulatory sections in the proposed rule published March 20, 2015 at 
80 FR 14,480.

I. Executive Summary

A. Introduction

    This final rule promotes the uniform application of Federal law 
designed to protect Indian children, their parents, and Indian Tribes. 
In conjunction with this final rule, the Solicitor is issuing an M 
Opinion addressing the implementation of the Indian Child Welfare Act 
by legislative rule. See M-37037. Congress enacted the Indian Child 
Welfare Act (ICWA), 25 U.S.C. 1901 et seq., in 1978 to address an 
``Indian child welfare crisis [ ] of massive proportions'': an 
estimated 25 to 35 percent of all Indian children had been separated 
from their families and placed in adoptive homes, foster care, or 
institutions. H.R. Rep. No. 95-1386, at 9 (1978), reprinted in 1978 
U.S.C.C.A.N. 7530, 7531. Although the crisis flowed from multiple 
causes, Congress found that nontribal public and private agencies had 
played a significant role, and that State agencies and courts had often 
failed to recognize the essential tribal relations of Indian people and 
the cultural and social standards prevailing in Indian communities and 
families. 25 U.S.C. 1901(4)-(5). To address this failure, ICWA 
establishes minimum Federal standards for the removal of Indian 
children from their families and the placement of these children in 
foster or adoptive homes, and confirms Tribal jurisdiction over child-
custody proceedings involving Indian children. 25 U.S.C. 1902.
    Since its passage in 1978, ICWA has provided important rights and 
protections for Indian families, and has helped stem the widespread 
removal of Indian children from their families and Tribes. State 
legislatures, courts, and agencies have sought to interpret and 
implement this Federal law, and many States should be applauded for 
their affirmative efforts and support of the policies animating ICWA.
    However, the Department has found that implementation and 
interpretation of the Act has been inconsistent across States and 
sometimes can vary greatly even within a State. This has led to 
significant variation in applying ICWA's statutory terms and 
protections. This variation means that an Indian child and her parents 
in one State can receive different rights and protections under Federal 
law than an Indian child and her parents in another State. This 
disparate application of ICWA based on where the Indian child resides 
creates significant gaps in ICWA protections and is contrary to the 
uniform minimum Federal standards intended by Congress.
    The need for consistent minimum Federal standards to protect Indian 
children, families, and Tribes still exists today. The special 
relationship between the United States and the Indian Tribes and their 
members upon which Congress based the statute continues in full force, 
as does the United States' direct interest, as trustee, in protecting 
Indian children who are members of or are eligible for membership in an 
Indian Tribe. 25 U.S.C. 1901, 1901(2). Native American children, 
however, are still disproportionately more likely to be removed from 
their homes and communities than other children. See, e.g., Attorney 
General's Advisory Committee on American Indian and Alaska Native 
Children Exposed to Violence, Ending Violence So Children Can Thrive 87 
(Nov. 2014); National Council of Juvenile and Family Court Judges, 
Disproportionality Rates for Children of Color in Foster Care, Fiscal 
Year 2013 (June 2015). In addition, some State court interpretations of 
ICWA have essentially voided Federal protections for groups of Indian 
children to whom ICWA clearly applies. And commenters provided numerous 
anecdotal accounts where Indian children were unnecessarily removed 
from their families and placed in non-Indian settings; where the rights 
of Indian children, their parents, or their Tribes were not protected; 
or where significant delays occurred in Indian child-custody 
proceedings due to disputes or uncertainty about the interpretation of 
the Federal law.

B. Overview of Final Rule

    The final rule updates definitions and notice provisions in the 
existing rule and adds a new subpart I to 25 CFR part 23 to address 
ICWA implementation by State courts. It promotes nationwide uniformity 
and provides clarity to the minimum Federal standards established by 
the statute. In many instances, the standards in this final rule 
reflect State interpretations and best practices, as reflected in State 
court decisions, State laws implementing ICWA, or State guidance 
documents. The rule provisions also reflect comments from organizations 
and individuals that serve children and families (including, in 
particular, Indian children) and have substantial expertise in child-
welfare practices.
    The final rule promotes compliance with ICWA from the earliest 
stages of a child-welfare proceeding. Early compliance promotes the 
maintenance of Indian families, and the reunification of Indian 
children with their families whenever possible, and reduces the need 
for disruption in placements. Timely notification of an Indian child's 
Tribe also ensures that Tribal government agencies have meaningful 
opportunities to provide assistance and resources to the child and 
family. And early implementation of ICWA's requirements conserves 
judicial resources by reducing the need for delays, duplication, and 
appeals.
    In particular, the final rule addresses the following issues:
     Applicability. The final rule clarifies when ICWA applies, 
while making clear that there is no exception to applicability based on 
certain factors used by a minority of courts in defining and applying 
the so-called ``existing Indian family,'' or EIF, exception.
     Initial Inquiry. The final rule clarifies the steps 
involved in conducting a thorough inquiry at the beginning of child-
custody proceedings as to whether the child is an ``Indian child'' 
subject to the Act.
     Emergency proceedings. Recognizing that emergency removal 
and placements are sometimes required to protect an Indian child's 
safety and welfare, the final rule clarifies the distinction between 
the requirements for emergency proceedings and other child-custody 
proceedings involving Indian children and includes provisions that help 
to ensure that emergency removal and placements are as short as 
possible, and that, when necessary, proceedings subject to the full 
suite of ICWA protections are promptly initiated.
     Notice. The final rule describes uniform requirements for 
prompt notice to parents and Tribes in involuntary proceedings to 
facilitate compliance with statutory requirements.
     Transfer. The final rule clarifies the requirement that a 
State court determine whether the State or Tribe has jurisdiction and, 
where jurisdiction is concurrent, establishes standards to guide the 
determination whether good cause exists to deny transfer (including 
factors that cannot properly be considered) and addresses transfer of 
proceedings to Tribal court.
     Qualified expert witnesses. The final rule provides 
interpretation of the term ``qualified expert witness.''
     Placement preferences. The final rule clarifies when and 
what placement preferences apply in foster care, pre-adoptive, and 
adoptive placements, provides presumptive standards for what may 
constitute good cause to depart from the placement preferences, and 
prohibits courts from considering

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certain factors as the basis for departure from placement preferences.
     Voluntary proceedings. The final rule clarifies certain 
aspects of ICWA's applicability to voluntary proceedings, including 
addressing the need to determine whether a child is an ``Indian child'' 
in voluntary proceedings and specifying the requirements for obtaining 
consent.
     Information, recordkeeping, and other rights. The final 
rule addresses the rights of adult adoptees to information and sets out 
what records States and the Secretary must maintain.
    The Department carefully considered the comments on the proposed 
rule and made changes responsive to those comments. The reasons for the 
changes are described in the section-by-section analysis below. In 
particular, while the proposed rule would have been directed to both 
State courts and agencies, the Department has focused the final rule on 
the standards to be applied in State-court proceedings. Most ICWA 
provisions address what standards State courts must apply before they 
take actions such as exercising jurisdiction over an Indian child, 
ordering the removal of an Indian child from her parent, or ordering 
the placement of the Indian child in an adoptive home. The final rule 
follows ICWA in this regard. Further, State courts are familiar with 
applying Federal law to the cases before them. Several ICWA provisions 
do apply, either directly or indirectly, to State and private agencies, 
see, e.g., 25 U.S.C. 1915(c); id. 1922; see also id. 1912(a). Nothing 
in this rule alters these obligations. And agencies need to be alert to 
the standards identified in the final rule, since these will determine 
what a court will require with respect to issues like notice to parents 
and Tribes (FR Sec.  23.111), emergency proceedings (FR Sec.  23.113), 
active efforts (FR Sec.  23.120), and placement preferences (FR Sec.  
23.129-132).
    The Department is cognizant that child-custody matters address some 
of the most fundamental elements of human life--children, familial 
ties, identity, and community. They often involve circumstances unique 
to the parties before the court and may require difficult and sometimes 
heart-wrenching decisions. The Department is also fully aware of the 
paramount importance of Indian children to their immediate and extended 
families, their communities, and their Tribes. In the final rule, the 
Department carefully balanced the need for more uniformity in the 
application of Federal law with the legitimate need for State courts to 
exercise discretion over how to apply the law to each case, while 
keeping in mind that Congress enacted ICWA in part to address a concern 
that State courts were exercising their discretion inappropriately, to 
the detriment of Indian children, parents, and Tribes. In some cases, 
the Department determined that particular standards or practices are 
better suited to guidelines; the Department anticipates issuing updated 
guidelines prior to the effective date of this rule (180 days from 
issuance). These considerations are discussed further in the section-
by-section analysis below.

II. Background

A. Background Regarding Passage of ICWA

    Congress enacted ICWA in 1978 to address the policies and practices 
that resulted in the ``wholesale separation of Indian children from 
their families.'' See H.R. Rep. No. 95-1386, at 9. After several years 
of investigation, Congress had found that an alarmingly high percentage 
of Indian families [were] broken up by the removal, often unwarranted, 
of their children from them by nontribal public and private agencies. 
25 U.S.C. 1901(4). The congressional investigation, which resulted in 
hundreds of pages of legislative testimony compiled over the course of 
four years of hearings, deliberation, and debate, revealed ``the 
wholesale separation of Indian children from their families.'' \1\ H.R. 
Rep. No. 95-1386, at 9. The empirical and anecdotal evidence showed 
that Indian children were separated from their families at 
significantly higher rates than non-Indian children. In some States, 
between 25 and 35 percent of Indian children were living in foster 
care, adoptive care, or institutions. Id. Indian children removed from 
their homes were most often placed in non-Indian foster care and 
adoptive homes. AIPRC Report at 78-87. These separations contributed to 
a number of problems, including the erosion of a generation of Indians 
from Tribal communities, loss of Indian traditions and culture, and 
long-term emotional effects on Indian children caused by loss of their 
Indian identity. See 1974 Senate Hearing at 1-2, 45-51 (statements of 
Sen. James Abourezk, Chairman, Subcomm. on Indian Affairs and Dr. 
Joseph Westermeyer, Dep't of Psychiatry, University of Minn.).
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    \1\ See Problems that American Indian Families Face in Raising 
Their Children and How These Problems Are Affected by Federal Action 
or Inaction: Hearing Before the Subcomm. on Indian Affairs of the S. 
Comm. on Interior and Insular Affairs, 93rd Cong. (1974) 
(hereinafter, ``1974 Senate Hearing''); Task Force Four: Federal, 
State, and Tribal Jurisdiction, American Indian Policy Review 
Commission Task Force Four, Report on Federal, State, and Tribal 
Jurisdiction (1976) (hereinafter ``AIPRC Report''); 123 Cong. Rec. 
21042-44 (June 27, 1977); To Establish Standards for the Placement 
of Indian Children in Foster or Adoptive Homes, to Prevent the 
Breakup of Indian Families, and for Other Purposes: Hearing on S. 
1214 Before the S. Select Comm. on Indian Affairs, 95th Cong. (1977) 
(hereinafter ``1977 Senate Hearing''); S. Rep. No. 95-597 (1977); 
123 Cong. Rec. 37223-26 (Nov. 4, 1977); To Establish Standards for 
the Placement of Indian Children in Foster or Adoptive Homes, To 
Prevent the Breakup of Indian Families, and for Other Purposes: 
Hearing on S. 1214 Before the Subcomm. On Indian Affairs and Public 
Lands of the H. Comm. on Interior and Insular Affairs, 95th Cong. 29 
(1978) (hereinafter, ``1978 House Hearing''); H.R. Rep. No. 95-1386 
(1978); 124 Cong. Rec. H38101-12 (1978).
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    Congress found that removal of children and unnecessary termination 
of parental rights were utilized to separate Indian children from their 
Indian communities. The four leading factors contributing to the high 
rates of Indian child removal were a lack of culturally competent State 
child-welfare standards for assessing the fitness of Indian families; 
systematic due-process violations against both Indian children and 
their parents during child-custody procedures; economic incentives 
favoring removal of Indian children from their families and 
communities; and social conditions in Indian country. H.R. Rep. No. 95-
1386, at 10-12.
    Congress also found that many of these problems arose from State 
actions, i.e., that the States, exercising their recognized 
jurisdiction over Indian child-custody proceedings through 
administrative and judicial bodies, have often failed to recognize the 
essential tribal relations of Indian people and the cultural and social 
standards prevailing in Indian communities and families. 25 U.S.C. 
1901(5). The standards used by State and private child-welfare agencies 
to assess Indian parental fitness promoted unrealistic non-Indian 
socioeconomic norms and failed to account for legitimate cultural 
differences in Indian families. Time and again, ``social workers, 
ignorant of Indian cultural values and social norms, ma[d]e decisions 
that [we]re wholly inappropriate in the context of Indian family life 
and so they frequently discover[ed] neglect or abandonment where none 
exist[ed].'' H.R. Rep. No. 95-1386, at 10. For example, Indian parents 
might leave their children in the care of extended-family members, 
sometimes for long periods of time. Social workers untutored in the 
ways of Indian family life assumed leaving children in the care of 
anyone outside the nuclear family amounted to neglect and grounds for 
terminating parental rights. Yet, the House Report noted, this is an 
accepted practice for certain Tribes. Id.

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

B. Overview of ICWA's Provisions

    In light of the information presented about State child-custody 
practices for Indian children, Congress passed ICWA to ``protect the 
rights of the Indian child as an Indian and the rights of the Indian 
community and tribe in retaining its children in its society.'' H.R. 
Rep. No. 95-1386, at 23. Congress further declared that it is the 
policy of this Nation to protect the best interests of Indian children 
and to promote the stability and security of Indian tribes and 
families. 25 U.S.C. 1902. And although Congress described ``the failure 
of State officials, agencies, and procedures to take into account the 
special problems and circumstances of Indian families and the 
legitimate interest of the Indian tribe in preserving and protecting 
the Indian family as the wellspring of its own future,'' H.R. Rep. No. 
95-1386, at 19, the legislature carefully considered the traditional 
role of the States in the arena of child welfare outside Indian 
reservations, and crafted a statute that would balance the interests of 
the United States, the individual States, Indian Tribes, and Indians, 
noting:

    While the committee does not feel that it is necessary or desirable 
to oust the States of their traditional jurisdiction over Indian 
children falling within their geographic limits, it does feel the need 
to establish minimum Federal standards and procedural safeguards in 
State Indian child-custody proceedings designed to protect the rights 
of the child as an Indian, the Indian family and the Indian tribe.

H.R. Rep. No. 95-1386, at 19.
    ICWA therefore applies to ``child-custody proceedings,'' defined as 
foster-care placements, terminations of parental rights, and pre-
adoptive and adoptive placements, involving an ``Indian child,'' 
defined as any unmarried person who is under age eighteen and either 
is: (a) A member of an Indian tribe; or (b) is eligible for membership 
in an Indian tribe and is the biological child of a member of an Indian 
tribe. 25 U.S.C. 1903. In such proceedings, Congress accorded Tribes

[[Page 38782]]

``numerous prerogatives . . . through the ICWA's substantive provisions 
. . . as a means of protecting not only the interests of individual 
Indian children and their families, but also of the tribes 
themselves.'' Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 
49 (1989). In addition, ICWA provides important procedural and 
substantive standards to be followed in State-administered proceedings 
concerning possible removal of an Indian child from her family. See, 
e.g., 25 U.S.C. 1912(d) (requiring provision of ``active efforts'' to 
prevent the breakup of the Indian family); id. 1912(e)-(f) (requiring 
specified burdens of proof and expert testimony regarding potential 
damage to child resulting from continued custody by parent, before 
foster-care placement or termination of parental rights may be 
ordered).
    The ``most important substantive requirement imposed on state 
courts'' by ICWA is the placement preference for any adoptive placement 
of an Indian child. Holyfield, 490 U.S. at 36-37. In any adoptive 
placement of an Indian child under State law, ICWA requires that a 
preference shall be given, in the absence of good cause to the 
contrary, to a placement with (1) a member of the child's extended 
family (regardless of whether they are Tribal citizens); (2) other 
members of the Indian child's Tribe; or (3) other Indian families. 25 
U.S.C. 1915(a). ICWA requires similar placement preferences for pre-
adoptive placement and foster-care placement. 25 U.S.C. 1915(a)-(b). 
These preferences reflect ``Federal policy that, where possible, an 
Indian child should remain in the Indian community.'' Holyfield, 490 
U.S. at 36-37 (internal citations omitted).

C. Need for These Regulations

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

[[Page 38783]]

likely to find out about custody adjudications involving their 
citizens. Some commenters have pointed to the large number of Tribal 
citizens living off-reservation as proof that off-reservation Indians 
have made a conscious choice to distance themselves from their Tribe 
and its culture, and that ICWA's protections are unnecessary. They have 
accordingly questioned the need for a legislative rule, based on the 
assumption that off-reservation Indians do not want the Federal 
protections that accompany their status as Indians.
---------------------------------------------------------------------------

    \2\ See United States Census Bureau, Fact for Features: American 
Indian and Alaska Native Heritage Month: November 2012 (Oct. 25, 
2012), https://www.census.gov/newsroom/releases/archives/facts_for_features_special_editions/cb12-ff22.html (summary files 
for 2015 are not yet available).
---------------------------------------------------------------------------

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

[[Page 38784]]

children from their families in many regions of the United States, 
Indian families continue to be broken up by the removal of their 
children by non-Tribal public and private agencies. Nationwide, based 
on 2013 data, Native American children are represented in State foster 
care at a rate 2.5 times their presence in the general population. See 
National Council of Juvenile and Family Court Judges, 
Disproportionality Rates for Children of Color in Foster Care tbl. 1 
(June 2015). This disparity has increased since 2000. Id. (showing 
disproportionality rate of 1.5 in 2000). In some States, including 
numerous States with significant Indian populations, Native American 
children are represented in State foster-care systems at rates as high 
as 14.8 times their presence in the general population of that State. 
Id. While this disproportionate overrepresentation of Native American 
children in the foster-care system likely has multiple causes, it 
nonetheless supports the need for this rule.
    Through numerous statutory provisions, ICWA helps ensure that State 
courts incorporate Indian social and cultural standards into decision-
making that affects Indian children. For example, section 1915 requires 
foster-care and adoptive placement preference be given to members of 
the child's extended family. This requirement comports with findings 
that Tribal citizens tend to value extended family more than the Euro-
American model, often having several generations of family and aunts 
and uncles participating in primary child-rearing activities. See, 
e.g., John G. Red Horse, Family Preservation: Concepts in American 
Indian Communities (Casey Family Programs and National Indian Child 
Welfare Assoc. Dec. 2000). Likewise, from the adoptee's perspective, 
extended-family-member involvement and strong connection to Tribe shape 
reunification. Ashley L. Landers et al., Finding Their Way Home: The 
Reunification of First Nations Adoptees, 10 First Peoples Child & 
Family Review no. 2 (2015).

D. The Department's Implementation of ICWA

    As required by ICWA, the Department issued regulations in 1979 to 
establish procedures through which a Tribe may reassume jurisdiction 
over Indian child-custody proceedings, 44 FR 45092 (Jul. 24, 1979) 
(codified at 25 CFR part 23), as well as procedures for notice of 
involuntary Indian child-custody proceedings, payment for appointed 
counsel in State courts, and procedures for the Department to provide 
grants to Tribes and Indian organizations for Indian child and family 
programs. 44 FR 45096 (Jul. 24, 1979) (codified at 25 CFR part 23). In 
January 1994, the Department revised its ICWA regulations to convert 
the competitive-grant process for Tribes to a noncompetitive funding 
mechanism, while continuing the competitive award system for Indian 
organizations. See 59 FR 2248 (Jan. 13, 1994).
    In 1979, the Department published recommended guidelines for Indian 
child-custody proceedings in State courts. 44 FR 24000 (Apr. 23, 1979) 
(proposed guidelines); 44 FR 32,294 (Jun. 5, 1979) (seeking public 
comment); 44 FR 67584 (final guidelines). Several commenters remarked 
then that the Department had the authority to issue regulations and 
should do so. The Department declined to issue regulations and instead 
revised its recommended guidelines and published them in final form in 
November 1979. 44 FR 67584.
    More recently, the Department determined that it may be appropriate 
and necessary to promulgate additional and updated rules interpreting 
ICWA and providing uniform standards for State courts to follow in 
applying the Federal law. In 2014, the Department invited public 
comments to determine whether to update its guidelines to address 
inconsistencies in State-level ICWA implementation that had arisen 
since 1979 and, if so, what changes should be made. The Department held 
several listening sessions, including sessions with representatives of 
federally recognized Indian Tribes, State-court representatives (e.g., 
the National Council of Juvenile and Family Court Judges (NCJFCJ) and 
the National Center for State Courts' Conference of Chief Justices 
Tribal Relations Committee), the National Indian Child Welfare 
Association, and the National Congress of American Indians. The 
Department received comments from those at the listening sessions and 
also received written comments, including comments from individuals and 
additional organizations. The Department considered these comments and 
subsequently published updated Guidelines (2015 Guidelines) in February 
2015. See 80 FR 10146 (Feb. 25, 2015).
    Many commenters on the 2015 Guidelines requested not only that the 
Department update its ICWA guidelines but that the Department also 
issue binding regulations addressing the requirements and standards 
that ICWA provides for State-court child-custody proceedings. 
Commenters noted the role that regulations could provide in promoting 
uniform application of ICWA across the country, along with many of the 
other reasons discussed above why ICWA regulations are needed. 
Recognizing that need, the Department began a notice-and-comment 
process to promulgate formal ICWA regulations. The Department issued a 
proposed rule on March 20, 2015 that would ``incorporate many of the 
changes made to the recently revised guidelines into regulations, 
establishing the Department's interpretation of ICWA as a binding 
interpretation to ensure consistency in implementation of ICWA across 
all States.'' 80 FR 14480, 14481 (Mar. 20, 2015).
    As part of its process collecting input on the proposed 
regulations, Interior held five public hearings and five Tribal-
consultation sessions across the country, as well as one public hearing 
and one Tribal consultation by teleconference. Public hearings and 
Tribal consultations were held on April 22, 2015, in Portland Oregon; 
April 23, 2015, in Rapid City, South Dakota; May 5, 2015, in 
Albuquerque, New Mexico; May 7, 2015, in Prior Lake, Minnesota; May 11 
and 12, 2015, by teleconference; and May 14, 2015, in Tulsa, Oklahoma. 
All sessions were transcribed. In addition to oral comments, the 
Department received over 2,100 written comments.
    After the public-comment period closed on May 19, 2015, the 
Department reviewed comments received and, where appropriate, made 
changes to the proposed rule in response. This final rule reflects the 
input of all comments received during the public-comment period and 
Tribal consultation. The comments on the proposed rule and the contents 
of the final rule are discussed in detail below in Section IV.
    In crafting this final rule, the Department is drawing from its 
expertise in Indian affairs generally, and from its extensive 
experience in administering Indian child-welfare programs specifically. 
BIA's Office of Indian Services, through its Division of Human 
Services, collects information from Tribes on their ICWA activities for 
the Indian Child Welfare Quarterly and Annual Report, ensures that ICWA 
processes and resources are in place to facilitate implementation of 
ICWA, administers the notice process under section 1912 of the Act, 
publishes a nationwide contact list of Tribally designated ICWA agents 
for service of notice, administers ICWA grants, and maintains a central 
file of adoption records under ICWA. In addition, BIA provides 
technical assistance to State social workers and courts on ICWA and 
Indian child welfare in general,

[[Page 38785]]

including but not limited to assisting in locating expert witnesses and 
identifying language interpreters. Currently, BIA employs a team of 
child protection social workers who provide this assistance on an as-
needed basis as part of their daily duties. BIA also employs an ICWA 
Policy Social Worker, who is both an attorney and a social worker, and 
who serves as the central BIA expert and liaison on ICWA matters.
    The Department is a significant Federal funding source for Indian 
child-welfare programs run by Tribes. Social-services funding is used 
to support Tribal and Department-operated Child Protection and Child 
Welfare Services (CPS/CW) on or near reservations and designated 
service areas. Tribal and Department caseworkers are the first 
responders for child and family services on reservations in Indian 
country. CPS/CW work is labor-intensive, as it requires social-service 
workers to frequently engage families through face-to-face contacts, 
assess the safety of children, monitor case progress, and ensure that 
essential services and support are provided to the child and her 
family. This experience is critical toward understanding the areas 
where ICWA is or is not working at the State level, as well as the 
necessary standards to address ongoing problems.
    Congress also tasked the Department with affirmatively monitoring 
State compliance with ICWA by accessing State records of placement of 
Indian children, including documentation of State efforts to fulfill 
ICWA placement preferences. See 25 U.S.C. 1915(e). State courts are 
further responsible for providing the Department with a final decree or 
adoptive order for any Indian child within 30 days after entering such 
a judgment, together with any information necessary to show the Indian 
child's name, birthdate, and Tribal affiliation, the names and 
addresses of the biological and adoptive parents, and the identity of 
any agency having relevant information relating to the adoptive parent. 
See 25 CFR 23.71. The Department's experience administering these 
programs has informed development of this rule.
    The Department has also consulted extensively with the Children's 
Bureau of the Administration for Children and Families, Department of 
Health and Human Services, and the Department of Justice in the 
formulation of this final rule. The Children's Bureau partners with 
Federal, State, and Tribal agencies to improve the overall health and 
well-being of children and families, and has significant expertise in 
child abuse and neglect. The Children's Bureau also administers 
capacity-building centers for States, Tribes, and courts. The 
Department of Justice has significant expertise in court practice, 
Indian law, and court decisions addressing ICWA. This close 
coordination with the Children's Bureau and the Department of Justice 
has helped produce a final rule that reflects the expertise of all 
three agencies.
    Finally, in issuing this final rule, the Department has considered 
the trust obligation of the United States to Indian Tribes, which 
Congress expressly referenced in ICWA. 25 U.S.C. 1901(3). The 
Department has also kept in mind the canon of construction, applied by 
Federal courts, that Federal statutes should be liberally construed in 
favor of Indians, with ambiguous provisions interpreted for their 
benefit. See, e.g., Montana v. Blackfeet Tribe of Indians, 471 U.S. 
759, 766 (1985); Doe v. Mann, 415 F.3d 1038, 1047 (9th Cir. 2005).

III. Authority for Regulations

    The Department's primary authority for this rule is 25 U.S.C. 1952. 
Section 1952 states that, within one hundred and eighty days after 
November 8, 1979, the Secretary shall promulgate such rules and 
regulations as may be necessary to carry out the provisions of this 
chapter. This expansive language evinces clear congressional intent 
that the Secretary (or in this case, her delegee, the Assistant 
Secretary-Indian Affairs, who oversees the Bureau of Indian Affairs) 
will issue rules to implement ICWA.
    As discussed above, the Department issued several rules 
implementing ICWA in 1979. These included regulations to establish 
procedures by which an Indian Tribe may reassume jurisdiction over 
Indian child-custody proceedings as authorized by Sec.  1918 of ICWA, 
see 44 FR 45092 (codified at 25 CFR part 13); regulations addressing 
topics such as notice in involuntary child-custody proceedings, payment 
for appointed counsel, grants to Indian Tribes and Indian organizations 
for Indian child and family programs, and recordkeeping and information 
availability, see 44 FR 45096 (codified at 25 CFR part 23); and 
interpretive guidelines for State courts to apply in Indian child-
custody proceedings. See 44 FR 67584. Some of these rules and 
regulations have been amended since their original issuance. See, e.g., 
59 FR 2248 (Jan. 13, 1994).
    Having carefully considered public comments on the issue and having 
reflected on statements the Department made in 1979, all of which are 
discussed further below, the Department determines that the rulemaking 
grant in Sec.  1952 encompasses jurisdiction to issue rules at this 
time that set binding standards for Indian child-custody proceedings in 
State courts. ICWA provides a broad and general grant of rulemaking 
authority that authorizes the Department to issue rules and regulations 
as may be necessary to implement ICWA. Similar grants of rulemaking 
authority have been held to presumptively authorize agencies to issue 
rules and regulations addressing matters covered by the statute unless 
there is clear congressional intent to withhold authority in a 
particular area. See, e.g., AT&T Corp. v. Iowa Utils. Bd., 525 U.S. 
366, 378 (1999); Am. Hospital Ass'n v. Nat'l Labor Relations Bd., 499 
U.S. 606, 609-10 (1991) (general grant of rulemaking authority ``was 
unquestionably sufficient to authorize the rule at issue in this case 
unless limited by some other provision in the Act''); Mourning v. 
Family Publ'ns Serv., Inc., 411 U.S. 356, 369 (1973) (``[w]here the 
empowering provision of a statute states simply that the agency may 
`make . . . such rules and regulations as may be necessary to carry out 
the provisions of this Act,' we have held that the validity of a 
regulation promulgated thereunder will be sustained so long as it is 
`reasonably related to the purposes of the enabling legislation'''); 
see also City of Arlington v. FCC, 133 S. Ct. 1863, 1874 (2013) 
(finding not ``a single case in which a general conferral of rulemaking 
or adjudicative authority has been held insufficient to support Chevron 
deference for an exercise of that authority within the agency's 
substantive field''); Qwest Communic'ns Int'l Inc. v. FCC, 229 F.3d 
1172, 1179 (D.C. Cir. 2000) (``[t]he grant of authority relied upon by 
a federal agency in promulgating regulations need not be specific; it 
is only necessary `that the reviewing court reasonably be able to 
conclude that the grant of authority contemplates the regulations 
issued''') (quoting Chrysler Corp. v. Brown, 441 U.S. 281, 308 (1979)). 
As discussed elsewhere in this preamble, the Department finds that this 
regulation is ``necessary to carry out the provisions'' of ICWA, 25 
U.S.C. 1952, and thus falls squarely within the statutory grant of 
rulemaking authority.
    ICWA's legislative history is consistent with the understanding 
that the statute's grant of rulemaking authority is broad and 
inclusive. The original versions of the House and Senate bills that led 
to the enactment of ICWA, as well as the version of the bill that 
passed the Senate, included the general grant of rulemaking authority

[[Page 38786]]

but also included specific, additional procedural requirements. See S. 
1214, 95th Cong., 1st Sess., Section 205; see also S. Rep. No. 95-597 
(Nov. 3, 1977). In particular, the bills required that within six 
months, the Secretary must consult with Tribes and Indian organizations 
``in the consideration and formulation of rules and regulations to 
implement the provisions of this Act''; within seven months, present 
the proposed rules to congressional committees; within eight months, 
publish proposed rules for notice and comment; and within ten months, 
promulgate final rules and regulations to implement the provisions of 
the Act. See S. 1214, sec. 205(b)(1). The bills authorized the 
Secretary to revise the rules and regulations, but required that they 
be presented to the congressional committees first. Id. 205(c). These 
requirements were considered during hearings held on February 9 and 
March 9, 1978, before the House of Representatives Committee on 
Interior and Insular Affairs. See 1978 House Hearings at 47.
    During debate of the bill on the House floor, the bill sponsor, 
Representative Udall, offered an amendment to change the rulemaking 
grant to its current text. Representative Udall explained that this 
amendment was designed to remove the burdens of submitting regulations 
to congressional committees, but did not indicate that the scope of the 
grant of rulemaking authority was to change in any way. See 124 Cong. 
Rec. H38,107 (1978). ICWA thus does not impose procedural requirements 
on rulemaking that exceed those required by the Administrative 
Procedure Act. Moreover, the Department views it as unlikely that 
Congress would have introduced and considered bills throughout the 95th 
Congress that would have imposed burdensome procedural requirements on 
the agency if Congress did not intend that Sec.  1952 would provide the 
Department with a broad grant of rulemaking authority.

A. Statements Made in the 1979 Guidelines

    The Department has reconsidered and no longer agrees with 
statements it made in 1979 suggesting that it lacks the authority to 
issue binding regulations. At that time, although it undertook a 
notice-and-comment process, the Department made clear that the final 
issued guidelines addressing State-court Indian-child-custody 
proceedings were not intended to have binding effect. See 44 FR 67584. 
The Department cited a number of reasons for issuing nonbinding 
guidelines, a course of action that was opposed by numerous 
commenters.\3\ Id. As described above, the Department concludes today 
that this binding regulation is within the jurisdiction of the agency, 
was encompassed by the statutory grant of rulemaking authority, and is 
necessary to implement the Act.
---------------------------------------------------------------------------

    \3\ See, e.g., Letter from Bob Aitken, Director, Social 
Services, The Minnesota Chippewa Tribe to David Etheridge (May 23, 
1979) (on file with the Department of the Interior) (``I feel 
strongly the Bureau of Indian Affairs should not be putting any of 
the act in `guideline' form. The `recommended guidelines for state 
courts' should be in rule or regulation form for state courts to 
follow. It appears the state courts will have a choice on whether or 
not to follow the Act. In my opinion, the Act does delegate to the 
Interior Department the authority to mandate such procedures.''); 
Letter from Henry Sockheson, Chairman, Steering Committee of the 
National Association of Indian Legal Services, to David Etheridge 
(May 17, 1979) (on file with the Department of the Interior) 
(``Fearful of a constitutional challenge by states, a possibility 
soundly discredited and rejected by the lawmakers, the Secretary has 
adopted a position which flies in the face of clear Congressional 
intent to the contrary, i.e., that he, even as a steward of 
Congressional purpose, cannot mandate procedures for state or tribal 
courts, the very meat & potatoes of the whole of Title I of the Act. 
In the place of these badly needed regulations, therefore, was 
substituted a Notice of `Recommended Guidelines for State Courts-
Indian Child-custody proceedings', which will have the practical 
effect of regulations without the protections afforded to the public 
under the Administrative Procedures Act. . . . It is apparent that 
the delicate relationships sought to be preserved by the Act 
justified and required regulatory action with regard to state court 
procedures by the Bureau and cannot be subjected to the whim of what 
surely Congress believed were recalcitrant state courts now 
functioning under questionable `guidelines.' ''); Letter from 
Alexander Lewis, Sr., Governor, Gila River Indian Community, to 
David Etheridge (May 21, 1979) (on file with the Department of the 
Interior) (``[A]bsent regulations [and] without force and effect, 
the guidelines are useless and the aims of the Act will be made more 
difficult to achieve. . . . By virtue of the Supremacy Clause of the 
United States Constitution, and this Act of Congress--the Indian 
Child Welfare Act, the Secretary of the Interior does have authority 
to promulgate regulations regarding the transfer of jurisdiction of 
Indian child proceedings from State to Tribal Court. I urge that you 
reconsider this action and promulgate regulations instead of 
guidelines, so that the provisions of the Act will not be 
emasculated.''); Letter from Frank Stede, Vice-Chief, Mississippi 
Band of Choctaw Indians, to David Etheridge (May 22, 1979) (on file 
with the Department of the Interior) (``[T]he notices should have 
been issued [as] regulations contrary to what the Interior 
Department presents as an [argument] for not issuing the guide lines 
as notices, the Congress clearly gave the Secretary authority to 
mandate procedures for State or Tribal court by passing legislation 
which deals with State and Tribal [i]ssue[s] in such an extensive 
fashion, clearly Congress would not have [g]one to such details if 
it had intended that compliance to [be] voluntary.'').
---------------------------------------------------------------------------

    While the Department stated in 1979 that binding regulations were 
``not necessary to carry out the Act,'' 37 years of real-world ICWA 
application have thoroughly disproven that conclusion and underscored 
the need for this regulation. See discussion supra at Section II.C. The 
intervening years have shown both that State-court application of the 
statute has been inconsistent and contradictory across, and sometimes 
within, jurisdictions. This, in turn, has impeded the statutory intent 
of providing minimum Federal standards that would protect Indian 
children, families, and Tribes, and has allowed problems identified in 
the 1970s to remain in the present day. The lack of clarity and 
uniformity regarding the meaning of key ICWA provisions also creates 
confusion, delays, and appeals in individual cases involving Indian 
children.
    For these reasons, the Department's decision to issue binding 
regulations finds strong support in the Supreme Court's carefully 
reasoned decision in Mississippi Band of Choctaw Indians v. Holyfield, 
490 U.S. 30 (1989). There, the Supreme Court addressed whether a State 
court had jurisdiction over a child-custody proceeding involving two 
Indian children. As the sole disputed issue in the case was whether the 
children were ``domiciled'' on a reservation for ICWA purposes, the 
Court confronted the initial question whether Congress intended the 
definition of ``domicile'' to be a matter of State law. The Court noted 
that ``the meaning of a federal statute is necessarily a federal 
question in the sense that its construction remains subject to this 
Court's supervision.'' Id. at 43. The Court further noted the rule of 
statutory construction that ``Congress when it enacts a statute is not 
making the application of the federal act dependent on state law.'' Id. 
The Court explained that one reason for this rule ``is that federal 
statutes are generally intended to have uniform nationwide 
application'' and another reason for the rule is ``the danger that the 
federal program would be impaired if state law were to control.'' Id. 
at 43-44.
    The Court then discussed its prior holding in NLRB v. Hearst 
Publications Inc., 322 U.S. 111 (1944), where it rejected an argument 
that the term ``employee'' in the Wagner Act should be defined by State 
law. It quoted that decision's finding that ``[t]he Wagner Act is . . . 
intended to solve a national problem on a national scale.'' 490 U.S. at 
44. The Court concluded that what it said of the Wagner Act ``applies 
equally well to the ICWA.'' Id. In explaining the reasons for this 
conclusion, the Court noted, inter alia, that ``Congress was concerned 
with the rights of Indian families and Indian communities vis-[agrave]-
vis state authorities'' and ``that Congress perceived the States and 
their courts as partly responsible for the problem it intended to 
correct.'' Id. at 45. ``Under these circumstances, it is most 
improbable that Congress would have

[[Page 38787]]

intended to leave the scope of the statute's key jurisdictional 
provision subject to definition by state courts as a matter of state 
law.'' Id. The Holyfield Court also recognized that Congress intended 
the implementation of ICWA to have nationwide consistency, so 
``Congress could hardly have intended the lack of nationwide uniformity 
that would result from state-law definitions of domicile.'' Id.
    In 1979, the Department had neither the benefit of the Holyfield 
Court's carefully reasoned decision nor the opportunity to observe how 
a lack of uniformity in the interpretation of ICWA by State courts 
could undermine the statute's underlying purposes. In practice, the 
meaning of various provisions of the Act has been subject to differing 
interpretation by each of the 50 States, and within the States, by 
various courts. What was intended to be a uniform Federal minimum 
standard now varies in its application based on the State or even the 
judicial district. See discussion supra at Section II.C. The Department 
thus has come to recognize that, as the Supreme Court stated in 
Holyfield, ``a statute under which different rules apply from time to 
time to the same child, simply as a result of his or her transport from 
one State to another, cannot be what Congress had in mind.'' Id. at 46.
    Many commenters cited, or made comments that repeated, specific 
statements made by the Department in 1979 in arguing that the 
Department should or should not issue a binding regulation. These 
statements, and the reasons why the Department is now departing from 
them, are discussed further below in the responses to comments.

B. Comments Agreeing That Interior May Issue a Binding Regulation

    Some commenters, including a group of law professors and the Tribal 
Law and Policy Institute, asserted that the Department has sufficient 
authority to issue binding regulations and that the legal basis for 
regulatory action is strong. These commenters pointed to 25 U.S.C. 1952 
authorizing the Department to promulgate such rules and regulations as 
may be necessary to carry out the provisions of the Act and 25 U.S.C. 2 
and 9, which provide Interior with general authority to prescribe 
regulations to carry into effect any provision of any Act of Congress 
relating to Indian affairs. These commenters further pointed to the 
fact that Congress's intent was to establish ``minimum Federal 
standards'' to be applied in State child-custody proceedings, and noted 
that in the last few decades, there have been divergent interpretations 
of ICWA provisions by State courts and uneven implementation by State 
agencies that undermine this purpose. Congress passed ICWA to address 
State-court and -agency application of child-welfare laws to provide a 
minimum Federal floor for such proceedings. These commenters asserted 
that regulations to enforce the minimum standards and address 
inconsistencies in implementation are well within the authority that 
Congress delegated to the Department.
    Other commenters stated that deference under Chevron U.S.A. Inc. v. 
Natural Resources Defense Council, 467 U.S. 837 (1984), would apply to 
the regulations because the regulations are within the grant of 
authority from Congress and directly address areas that are enforced 
inconsistently by the States in derogation of congressional intent. A 
commenter pointed out that there is no case in which a general 
conferral of rulemaking authority has been held insufficient to support 
Chevron deference for an exercise of that authority within the agency's 
substantive field.
    Some commenters noted that under established case law, the 
Department's statements in 1979 concerning its authority to issue a 
binding regulation do not preclude it from issuing this binding 
regulation. Commenters further stated that issuance of the regulation 
is fully consistent with the Tenth Amendment, discounted the Federalism 
concerns potentially implicated by the regulation, and dismissed any 
suggestion that the regulation is unconstitutional. Some of these 
commenters stated that domestic family law is no longer the exclusive 
purview of States, if it ever was. Many commenters urged the Department 
to include in this preamble a thorough discussion of its authority to 
issue this binding regulation, including the citations to case law, in 
an effort to ensure that State courts will adhere to the regulations.
    The Department agrees with these comments for the detailed reasons 
set forth in this preamble.

C. Comments Disagreeing That the Department Has Authority To Issue a 
Binding Regulation

    Other commenters asserted that the Department does not have the 
authority to promulgate regulations. These commenters generally stated 
that ICWA provides the Department with authority for rulemaking only 
with respect to limited matters, such as with respect to grants to 
Tribes. The reasons cited in support of these comments are discussed 
separately below.
1. Agency Expertise
    Comment: Some commenters stated that the BIA does not have 
expertise with respect to the child-welfare matters addressed by ICWA. 
These commenters pointed to a number of Supreme Court cases that 
establish domestic-relations law as being within the realm of State 
law.
    Response: The Department respectfully disagrees with these 
commenters. ICWA addresses Indian affairs, is premised on Congress's 
plenary Indian-affairs power and trust responsibility, and seeks to 
prevent unwarranted State intrusion into Tribal affairs and sovereignty 
and to protect the integrity of Indian families. See 25 U.S.C. 1901, 
1902. An express purpose of the statute was to provide safeguards 
against State officials who may not understand Tribal cultural or 
social standards. 25 U.S.C. 1901.
    These are all areas squarely within the mandate and expertise of 
the BIA. The BIA is the Federal agency charged with the management of 
all Indian affairs and of all matters arising out of Indian relations, 
25 U.S.C. 2, and may proscribe such regulations as [it] may think fit 
for carrying into effect the various provisions of any act relating to 
Indian affairs. 25 U.S.C. 9. The BIA's special expertise regarding 
Indian affairs, including Indian cultural values and social norms 
related to child-rearing, as well as Indian family and child service 
programs, make it logical for Congress to have entrusted the Department 
with rulemaking authority for the statute.\4\ Cf. Runs After v. United 
States, 766 F.2d 347, 352 (9th Cir. 1985) (``It cannot be denied that 
the BIA has special expertise and extensive experience in dealing with 
Indian affairs.''); Golden Hill Paugussett Tribe of Indians v. Weicker, 
39 F.3d 51, 60 (2d Cir. 1994).
---------------------------------------------------------------------------

    \4\ Indeed, the BIA has a long-established hiring preference for 
qualified Indian individuals, which was designed ``to increase the 
participation of tribal Indians in BIA operations'' and ``make the 
BIA more responsive to the needs of its constituent groups.'' Morton 
v. Mancari, 417 U.S. 535, 543-44, 554 (1974). The BIA is thus 
particularly well-suited to set standards that ensure consideration 
of Tribal cultural and social practices, and protect the integrity 
of Tribes.
---------------------------------------------------------------------------

    Further, BIA has extensive and longstanding experience in Indian 
child-welfare matters. Congress statutorily charged BIA with providing 
child-welfare services to all federally recognized Tribes. BIA social 
services and law enforcement are often the first responders in matters 
involving families and children. See, e.g., 25 CFR part 20.

[[Page 38788]]

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

[[Page 38789]]

States of their traditional jurisdiction over Indian children falling 
within their geographical limits,'' H.R. Rep. No. 95-1386, at 19, 
Congress enacted ICWA to curtail State authority in certain respects. 
At the heart of ICWA are provisions that address the respective 
jurisdiction of Tribal and State courts. Other important provisions of 
ICWA require State courts to apply minimum Federal standards and 
procedural safeguards in child-custody proceedings for Indian children. 
This rule serves to clarify ICWA's requirements, with the goal of 
promoting uniform application of the statute across States.
    While a few commenters asserted that this rule violates the Tenth 
Amendment, the Supreme Court repeatedly has reaffirmed the ``power of 
Congress to pass laws enforceable in state courts.'' New York v. United 
States, 505 U.S. 144, 178 (1992); Testa v. Katt, 330 U.S. 386, 394 
(1947); F.E.R.C. v. Mississippi, 456 U.S. 742, 760-61 (1982). The Court 
also has explained that ``[i]f a power is delegated to Congress in the 
Constitution, the Tenth Amendment expressly disclaims any reservation 
of that power to the States.'' New York, 505 U.S. at 156. Here, 
Congress enacted ICWA primarily pursuant to the Indian Commerce Clause, 
which provides Congress with plenary power over Indian affairs. 25 
U.S.C. 1901(1). In clarifying ICWA's requirements, the Department is 
exercising the authority that Congress delegated to it. Having 
considered the nature of this rule, the comments received, and the 
relevant case law, the Department concludes that this rule does not 
violate the Tenth Amendment for the same reasons that ICWA does not 
violate the Tenth Amendment.
    The Department also has reflected on the Federalism concerns it 
noted in 1979. The Department does not view this rule as an 
``extraordinary'' exercise of authority involving an assertion of 
``supervisory control'' over State courts. While the Department's 
promulgation of this rule may override what some courts believed to be 
the best interpretation of ambiguous provisions of ICWA or how these 
courts filled gaps in ICWA's requirements, the Supreme Court has 
reasoned that such a scenario is not equivalent to making ``judicial 
decisions subject to reversal by executives.'' Nat'l Cable & Telecomm. 
Ass'n v. Brand X Internet Servs., 545 U.S. 967, 983 (2005). Rather, the 
Department's rule clarifies a limited set of substantive standards and 
related procedural safeguards that courts will apply to the particular 
cases before them.\5\ For these reasons, and because Congress 
unambiguously provided the Department authority to issue this rule, the 
Department does not view Federalism concerns as counseling against the 
issuance of this rule.\6\
---------------------------------------------------------------------------

    \5\ The Supreme Court has explained that ``[v]alid regulations 
establish legal norms. Courts can give them proper effect even while 
applying the law to newfound facts, just as any court conducting a 
trial in the first instance must conform its rulings to controlling 
statutes, rules, and judicial precedents.'' United States v. Haggar 
Apparel Co., 526 U.S. 380, 391 (1999). Of course, the construction 
of ICWA by State courts will ``remain[ ] subject to [the Supreme] 
Court's supervision.'' Holyfield, 490 U.S. at 43.
    \6\ In evaluating these concerns, the Department also notes that 
Congress provides a substantial amount of Federal funding to States 
for child-welfare programs, see, e.g., Consolidated and Further 
Continuing Appropriations Act, 2015 (Pub. L. 113-235); Emilie 
Stoltzfus, Child Welfare: An Overview of Federal Programs and Their 
Current Funding (Congressional Research Service 2015), and that 
other Federal statutes address State family law. See, e.g., 42 
U.S.C. 652.
---------------------------------------------------------------------------

5. Federalism Executive Order
    Comment: A few commenters additionally stated that the rule has 
Federalism implications because it has substantial direct effects on 
States, on the relationship between the national government and States, 
and on the distribution of power and responsibilities among the various 
levels of government. A commenter stated that the Department violates 
the Federalism executive order because the rule preempts State law, and 
the Department did not provide ``all affected State and local 
officials'' notice and opportunity to comment on that preemption as 
required.
    Response: The Department stated in the proposed rule that ``[u]nder 
the criteria in Executive Order 13132, this rule has no substantial 
direct effect on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.'' The 
Department thus ``determined that this rule complies with the 
fundamental Federalism principles and policymaking criteria established 
in EO 13132.'' The Department reaffirms these determinations, and 
respectfully disagrees with commenters who stated or suggested that 
these determinations are incorrect.
    ICWA balances the Federal interest in protecting the integrity of 
Indian families and the sovereign authority of Indian Tribes with the 
States' sovereign interest in child-welfare matters. Congress carefully 
crafted ICWA's jurisdictional scheme so as to recognize the authority 
of each of these sovereigns. In crafting this scheme, Congress 
recognized a need to curtail certain State authority and enacted ICWA 
to address Indian child welfare through a statutory framework intended 
to apply uniformly across States. Since 1978, States have been required 
to comply with ICWA, and this regulation serves to interpret and fill 
gaps in the Federal minimum standards and procedural safeguards set 
forth in the statute. Many of the standards included in this rule are 
already being followed by a number of States.
    In the notice of the proposed rule, the Department specifically 
solicited comments on the proposed rule from State officials, including 
suggestions for how the rule could be made more flexible for State 
implementation. 80 FR 14883. The Department carefully considered and 
addressed in this rulemaking all comments received concerning this 
regulation, some of which were submitted by State judges and other 
State officials.
6. Change in Position From Statements Made in 1979
    Comment: Several commenters expressed concern that the Department's 
issuance of a binding regulation would be inconsistent with, or 
impermissible in light of, statements the Department made in 1979 
regarding its authority to promulgate binding regulations. These 
commenters asserted that the Department's issuance of a binding 
regulation would conflict with established case law and that the 
binding regulation would ``sweep aside 37 years of state appellate 
court decisions regarding rights of children and families.''
    Response: The Department has described its reasons for departing 
from the statements it made in 1979. Under well-established case law, 
the Department's prior statements pose no bar to this regulation. The 
Department also notes that the final rule does not disregard State 
appellate-court decisions. To the contrary, the Department carefully 
considered State appellate-court decisions, State legislation, and 
State guidance documents in promulgating the final rule. Many State 
standards and practices are reflected in the final rule. And on many 
issues, the Department's review of disparate State standards reinforced 
the Department's view that more uniformity in the interpretation of 
ICWA is needed.
7. Timeliness
    Comment: Some commenters who argued the regulations are 
unauthorized focused on the fact that ICWA imposed a deadline of 
November 8, 1978 for the Department to promulgate regulations; these 
commenters state that the

[[Page 38790]]

authority for promulgating regulations expired after that date.
    Response: ICWA states that ``within'' 180 days after November 8, 
1978, the Department shall promulgate such rules and regulations as may 
be necessary to carry out ICWA. See 25 U.S.C. 1952. Regulations may be 
issued after the passage of a statutory deadline, however, so long as 
the statute, as is the case with ICWA, does not spell out explicit 
consequences for late action. See, e.g., Barnhart v. Peabody Coal Co., 
537 U.S. 149, 159 (2003); Brock v. Pierce Cty., 476 U.S. 253, 262 
(1986).

IV. Discussion of Rule and Comments

A. Public Comment and Tribal Consultation Process

1. Fairness in Proposing the Rule
    Comment: Commenters asserted that the 2015 Guidelines and the 
proposed regulations were drafted without any outreach or request for 
comment from adoption agencies, attorneys, or other adoption 
professionals. One commenter stated that all the comments that were 
incorporated into the proposed regulations were only from the position 
of Indian Tribes, and did not reflect any input from State Attorney 
Generals, State child-welfare agencies, or others.
    Other commenters stated their appreciation for the Department's 
diligence in seeking input from the public. Commenters stated that the 
experts on Indian child-welfare matters are Tribes, because they work 
in the field on a daily basis and have no special interest in 
determining the best interest of Tribal children beyond wanting the 
children to succeed and be connected to their culture and community. A 
number of States commented favorably on the proposed rule, and provided 
helpful comments to improve the final rule.
    Response: The Department disagrees with the assertion that the 2015 
Guidelines or proposed rule were developed without public input. As 
part of the preparation of the updated guidelines, the Department 
invited comments from federally recognized Indian Tribes, State-court 
representatives, and organizations concerned with Tribal children, 
child welfare, and adoption. See 80 FR at 10146-67. Those comments, the 
recommendations of the Attorney General's Advisory Committee on 
American Indian/Alaska Native Children Exposed to Violence, 
developments in ICWA jurisprudence, and the expertise of the Department 
and other Federal agencies were all considered in updating the 
guidelines as well as the drafting of the proposed rule. Since issuing 
the proposed rule, the Department has engaged in a robust public 
comment process, as discussed above and as evidenced by the large 
number of written comments received by BIA on this rulemaking.
2. Locations of Meetings/Consultations
    Comment: Several commenters opposed the locations where the 
Department held the public hearings on the proposed rule during the 
public comment process. The commenters noted that all the hearings were 
held west of the Mississippi River, and none were held in any of the 
most populous States. Some commenters requested additional hearings in 
various locations.
    Response: The Department chose locations for public hearings based 
on general areas where there are likely to be larger populations of 
Indian children and thus more ICWA proceedings. The Department also 
hosted a national teleconference to accommodate other interested 
persons who were unable to attend an in-person session including, but 
not limited to, anyone who may reside far from where the in-person 
sessions were held. A total of 215 persons participated by 
teleconference. In addition, Tribal consultation sessions and public 
hearings were held in Oklahoma, Alaska, and several other locations. 
More than 2,100 written comments were received.

B. Definitions

1. ``Active Efforts''
    ICWA requires the use of ``active efforts'' to provide remedial 
services and rehabilitative programs designed to prevent the breakup of 
the Indian family. 25 U.S.C. 1912(d). ICWA does not define ``active 
efforts.'' The Department finds, however, that Congress intended this 
requirement to provide vital protections to Indian children and their 
families by requiring that support be provided to keep them together, 
whenever possible. In particular, Congress recognized that many Indian 
children were removed from their homes because of poverty, joblessness, 
substandard housing, and related circumstances. Congress also 
recognized that Indian parents sometimes suffered from ``cultural 
disorientation, a [ ] sense of powerlessness, [and] loss of self-
esteem,'' and that these forces ``arise, in large measure from our 
national attitudes as reflected in long-established Federal policy and 
from arbitrary acts of Government.'' H.R. Rep. No. 95-1386, at 12. But, 
Congress concluded, ``agencies of government often fail to recognize 
immediate, practical means to reduce the incidence of neglect or 
separation.'' Id. The ``active efforts'' requirement is one of the 
primary tools provided in ICWA to address this failure, and should thus 
be interpreted in a way that requires substantial and meaningful 
actions by agencies to reunite Indian children with their families. The 
``active efforts'' requirement is designed primarily to ensure that 
services are provided that would permit the Indian child to remain or 
be reunited with her parents, whenever possible. This is viewed by some 
child-welfare organizations as part of the ``gold standard'' of what 
services should be provided in child-welfare proceedings.
    The Department finds that there are compelling reasons for setting 
a nationwide definition for this critical statutory term. Although 
there is substantial agreement, among those State courts that have 
considered the issue, that active efforts requires more than simply 
formulating a case plan for the parent of an Indian child, there is 
still variation among the States as to what level of efforts is 
required. This means that the standard for what constitutes ``active 
efforts'' can vary substantially among States, even for similarly 
situated Indian children and their parents. The final rule will reduce 
this variation, thus promoting nationwide consistency in the 
implementation of this Federal right.
    The final rule defines ``active efforts'' and provides examples of 
what may constitute active efforts in a particular case. The final rule 
retains the language from the proposed rule that active efforts means 
actions intended primarily to maintain and reunite an Indian child with 
his or her family. The final rule clarifies that, where an agency is 
involved in the child-custody proceeding, active efforts involve 
assisting the parent through the steps of a case plan, including 
accessing needed services and resources. This is consistent with 
congressional intent--by its plain and ordinary meaning, ``active'' 
cannot be merely ``passive.''
    The final rule indicates that, to the extent possible, active 
efforts should be provided in a manner consistent with the prevailing 
social and cultural conditions of the Indian child's Tribe, and in 
partnership with the child, parents, extended family, and Tribe. This 
is consistent with congressional direction in ICWA to conduct Indian 
child-welfare proceedings in a way that reflects the cultural and 
social standards prevailing in Indian communities and families. There 
is also evidence that services that are adapted to the client's 
cultural backgrounds are better. See, e.g., Mental Health: Culture, 
Race, and

[[Page 38791]]

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

[[Page 38792]]

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

[[Page 38793]]

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

[[Page 38794]]

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

[[Page 38795]]

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

[[Page 38796]]

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

[[Page 38797]]

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

[[Page 38798]]

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

[[Page 38799]]

place outside of the Tribe's State. Section 23.133 encourages State 
courts to permit alternative means of participation in Indian child-
custody proceedings in order to minimize burdens on Tribes and other 
parties. The Department agrees with the practice adopted by the State 
courts that permit Tribal representatives to present before the court 
in ICWA proceedings regardless of whether they are attorneys or 
attorneys licensed in that State. See e.g., J.P.H. v. Fla. Dep't of 
Children & Families, 39 So.3d 560 (Fla. Dist. Ct. App. 2010) (per 
curiam); State v. Jennifer M. (In re Elias L.), 767 N.W.2d 98, 104 
(Neb. 2009); In re N.N.E., 752 N.W.2d 1, 12 (Iowa 2008); State ex rel. 
Juvenile Dep't of Lane Cty. v. Shuey, 850 P.2d 378 (Or. Ct. App. 1993).

C. Applicability

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

[[Page 38800]]

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

[[Page 38801]]

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

[[Page 38802]]

since rescinded it. In re S.M.H., 103 P.3d 976 (Kan. Ct. App. 2005). 
Only a handful of courts continue to recognize the exception (including 
only one of six appellate districts in California, Alabama, Indiana, 
Kentucky, Louisiana, Nevada, Missouri, Tennessee).\7\ In contrast, a 
swelling chorus of other States have affirmatively rejected the EIF 
exception (including Alaska, Arizona, Colorado, Idaho, Illinois, Iowa, 
Michigan, Montana, New Jersey, New York, North Carolina, North Dakota, 
Oklahoma, Oregon, South Dakota, Texas, Virginia and Utah).\8\
---------------------------------------------------------------------------

    \7\ See, e.g., In re Alexandria Y., 53 Cal. Rptr. 2d 679 (Cal. 
Ct. App. 1996) (4th Dist.); Rye v. Weasel, 934 S.W.2d 257 (Ky. 
1996); Hampton v. J.A.L., 27-869 (La. App. 2 Cir. 7/6/95); 658 So. 
2d 331; C.E.H. v. L.M.W., 837 S.W.2d 947 (Mo. Ct. App. 1992); In re 
Morgan, No. 02A01-9608-CH-00206, 1997 WL 716880 (Tenn. Ct. App. Nov. 
19, 1997); S.A. v. E.J.P., 571 So. 2d 1187 (Ala. Civ. App. 1990); In 
re Adoption of T.R.M., 525 N.E.2d 298, 303 (Ind. 1988); In re N.J., 
221 P.3d 1255 (Nev. 2009).
    \8\ See, e.g., In re Alexandria P., 176 Cal. Rptr. 3d 468, 484-
86 (Cal. Ct. App. 2014); J.W. v. R.J., 951 P.2d 1206 (Alaska 1998); 
Michael J., Jr. v. Michael J., Sr., 7 P.3d 960 (Ariz. Ct. App. 
2000); In re N.B., No. 06CA1325 (Colo. Ct. App. Sept. 6, 2007); In 
re Baby Boy Doe, 849 P.2d 925 (Idaho 1993); In re S.S., 657 N.E.2d 
935 (Ill. 1995); In re R.E.K.F., 698 N.W.2d 147 (Iowa 2005); In re 
Elliott, 554 N.W.2d 32 (Mich. Ct. App. 1996); In re Riffle, 922 P.2d 
510 (Mont. 1996); In re Child of Indian Heritage, 543 A.2d 925 (N.J. 
1988); In re Baby Boy C., 805 N.Y.S.2d 313 (N.Y. App. Div. 2005); In 
re A.D.L., 612 S.E.2d 639 (N.C. Ct. App. 2005); In re A.B., 663 
N.W.2d 625 (N.D. 2003); In re Baby Boy L., 103 P.3d 1099 (Okla. 
2004); Quinn v. Walters, 881 P.2d 795 (Or. Ct. App. 1994); In re 
Baade, 462 N.W.2d 485 (S.D. 1990); In re W.D.H., III, 43 S.W.3d 30 
(Tex. App. 2001); In re D.A.C., 933 P.2d 993 (Utah Ct. App. 1997); 
Thompson v. Fairfax County Dep't of Family Servs., 747 S.E.2d 838 
(Va. Ct. App. 2013).
---------------------------------------------------------------------------

    Those courts that have rejected the EIF exception are correct. As 
explained above, ICWA applies to any child-custody proceeding involving 
an Indian child. And where Congress intended a categorical exemption, 
it provided one expressly. Congress thus excepted from the definition 
of a ``child-custody proceeding'' ``an award, in a divorce proceeding, 
of custody to one of the parents'' and also a ``placement'' resulting 
from a juvenile delinquency proceeding. 25 U.S.C. 1903(1). It provided 
no such exception for cases that, in a State court's view, do not 
involve an ``existing Indian family.'' In addition, the Supreme Court 
did not adopt the EIF exception, even though some parties urged the 
Court to adopt it in the Adoptive Couple case. See Adoptive Couple v. 
Baby Girl, 133 S. Ct. at 2552.
    Congress did not intend to limit ICWA's applicability to those 
Tribal citizens actively involved in Indian culture. Contrary to the 
commenters' assertions, Congress was concerned with children whose 
families lived far from Indian country, and might only maintain 
sporadic contact with the Tribe. For example, Congress expressly 
distinguished between children domiciled on-reservation and off-
reservation for the purposes of jurisdiction, and applied the vast 
majority of ICWA provisions to off-reservation Indian children. For 
these reasons, the final rule continues to clarify that there is no EIF 
exception to the application of ICWA.
    The final rule no longer uses the nomenclature of the exception, 
and instead focuses on the substance, rather than the label, of the 
exception. Thus, the final rule imposes a mandatory prohibition on 
consideration of certain listed factors, because they are not relevant 
to the inquiry of whether the statute applies. If a child-custody 
proceeding concerns a child who meets the statutory definition of 
``Indian child,'' then the court may not determine that ICWA does not 
apply to the case based on factors such as the participation of the 
parents or the Indian child in Tribal cultural, social, religious, or 
political activities, the relationship between the Indian child and his 
or her Indian parents, whether the parent ever had custody of the 
child, or the Indian child's blood quantum.
    One of the factors that the rule prohibits a court from considering 
in determining whether ICWA will apply to a proceeding is ``the Indian 
child's blood quantum.'' FR Sec.  23.103(c). That factor is intended to 
make clear that, in a case involving a child who meets the statutory 
definition of an Indian child, a court may not then go on to determine 
that ICWA should not apply to that proceeding because the child has a 
certain blood quantum. That factor is, however, not intended to 
prohibit a court from examining a child's blood quantum for the limited 
purpose of determining whether the child meets the statutory definition 
of ``Indian child,'' if a Tribe does not respond to requests for 
verification of a child's citizenship or eligibility for citizenship. 
In that limited circumstance, a State court may review whether the 
child is eligible under a Tribe's citizenship criteria. Likewise, in 
that limited instance, and if the Tribe's criteria necessitates 
examining blood quantum to determine citizenship or eligibility, then 
the State court may consider blood quantum for the purpose of making a 
determination as to whether the child is eligible for citizenship and 
therefore an ``Indian child'' under the statute. If the Tribe responds 
to requests for verification of the child's citizenship or eligibility 
for citizenship, the court must accept the Tribe's verification and may 
not substitute its own determination regarding a child's citizenship in 
a Tribe, a child's eligibility for citizenship in a Tribe, or a 
parent's citizenship in a Tribe.
4. Other Applicability Provisions
    Comment: Several commenters recommended adding that ICWA applies to 
any domestic-violence proceeding in which the Court restricts a 
parent's access to the Indian child.
    Response: The final rule does not add the suggested language 
because a restriction of parental access to the child under these 
circumstances may not meet the definition of a ``child-custody 
proceeding'' under the Act.
    Comment: One commenter suggested clarifying that ``foster care'' 
includes any placement that may use Title IV-E funding, since there are 
various definitions of foster care.
    Response: The final rule's definition of ``foster-care placement'' 
mirrors that of the ICWA and generally includes placements that use 
Title IV-E funding where parental rights have not been terminated.
    Comment: One commenter requested clarification here, in addition to 
in the definition of ``Indian child,'' that once ICWA applies, it 
applies throughout the duration of the case, regardless of whether the 
child turns 18.
    Response: The final rule adds clarification to the applicability 
section that ICWA will not cease to apply simply because the child 
turns 18. See FR Sec.  23.103(d).
    Comment: One commenter questioned the provision stating that ICWA 
does not apply to Tribal court proceedings.
    Response: Tribes may have their own laws similar to ICWA, but the 
Federal ICWA provides standards applicable only to State-court 
proceedings (except for provisions regarding transfer of jurisdiction 
to Tribal court or Tribal intervention).

D. Inquiry and Verification

    The applicability of ICWA to a child-custody proceeding turns on 
the threshold question of whether the child in the case is an Indian 
child. It is, therefore, critically important that there be an inquiry 
into that threshold issue as soon as possible. If this inquiry is not 
timely, a child-custody proceeding may not comply with ICWA and thus 
may deny IWCA protections to Indian children and their families. The 
failure to timely determine if ICWA applies also can generate 
unnecessary delays, as the court and the parties may need to redo 
certain processes or findings under the correct standard. This is 
inefficient for courts and parties, and can create

[[Page 38803]]

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

[[Page 38804]]

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

[[Page 38805]]

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

[[Page 38806]]

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

[[Page 38807]]

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

[[Page 38808]]

that only the Tribe may define its membership.
    Response: The final rule adopts the substance of this suggestion by 
deleting ``may'' and instead providing that the Tribe ``determines.''
    Comment: One commenter requested clarification that a child may be 
a member in a Tribe without necessarily being enrolled.
    Response: Tribes determine their citizenship; neither the statute 
nor the rule address how a Tribe determines who its citizens are (by 
enrollment, or otherwise).
    Comment: A commenter requested adding language stating that a Tribe 
that previously made a determination as to Tribal membership may 
revisit and/or correct that decision.
    Response: The Tribe determines citizenship and may provide new 
evidence as to Tribal citizenship to the court.
    Comment: One commenter stated there should be a presumed Tribe the 
same way there is a presumed parent because it often takes a Tribe 
years to recognize a child as eligible for enrollment.
    Response: The rule does not include a provision establishing a 
presumed Tribe. ICWA establishes that a child is an ``Indian child'' if 
the child is enrolled, or if the parent is enrolled and the child is 
eligible for enrollment.

E. Jurisdiction: Requirement To Dismiss Action

    With limited exceptions, ICWA provides for Tribal jurisdiction 
``exclusive as to any State'' over child-custody proceedings involving 
an Indian child who resides or is domiciled within the reservation of 
such Tribe. 25 U.S.C. 1911(a). ICWA also provides for exclusive Tribal 
jurisdiction over an Indian child who is a ward of a Tribal court, 
notwithstanding the residence or domicile of the child. Id.
    A court's subject-matter jurisdiction is essential to the exercise 
of judicial power, is not a subject of judicial discretion, and cannot 
be waived. See, e.g., Arbaugh v. Y&H Corp., 546 U.S. 500 (2006). Thus, 
the final rule identifies the determinations that a State court must 
make to assess its jurisdiction. If the State court does not have 
jurisdiction, either because the Indian child is domiciled on a 
reservation, where the Tribe exercises exclusive jurisdiction over 
child-custody proceedings, or because the Indian child is a ward of a 
Tribal court, the final rule instructs the State court to notify the 
Tribal court of the pending dismissal, dismiss the State-court 
proceedings, and send all relevant information to the Tribal court. 
State and Tribal courts and State and Tribal child-welfare agencies are 
encouraged to work cooperatively to ensure that this process proceeds 
expeditiously and that the welfare of the Indian child is protected.
    Comment: A commenter stated that the court should be required to 
``immediately'' dismiss a proceeding under PR Sec.  23.110 as soon as 
it determines it lacks jurisdiction. A few commenters requested 
additions to ensure that the State diligently contacts the Tribe and 
transfers the case in a timely manner.
    Response: The final rule does not include a requirement to dismiss 
a case within a certain time frame because the timing may depend upon 
coordination with the Tribal court. See FR Sec.  23.110. The final rule 
does add a requirement that the State must ``expeditiously'' notify the 
Tribe of a pending dismissal. The State court may also need to reach 
out to the Tribal court or Tribal child-welfare agency to determine 
whether jurisdiction over child-custody proceedings for that Tribe is 
otherwise vested in the State by existing Federal law. See 25 U.S.C. 
1911(a).
    Comment: A few commenters suggested revising PR Sec.  23.110(b) to 
specify that the documentation the agency must submit includes ``all 
agency documentation as well as reporter information'' because a Tribal 
court to which a case is transferred is at a disadvantage without 
reporter information on key witnesses and other details.
    Response: The final rule requires the court to transmit all 
information in its possession regarding the Indian child-custody 
proceeding to the Tribal court. Such information would include all the 
information within the court's possession regarding the Indian child-
custody proceeding; the final rule adds examples for clarity. The final 
rule also changes ``all available information'' to ``all information'' 
regarding the proceeding. See FR Sec.  23.110. In order to best protect 
the welfare of the child, State agencies may wish to share information 
that is not contained in the State court's records but that would 
assist the Tribe in understanding and meeting the Indian child's needs.
    Comment: A few commenters suggested an amendment to clarify that 
the mandatory dismissal provisions do not apply if the State and Tribe 
have an agreement regarding jurisdiction because, in some cases, Tribes 
choose to refrain from asserting jurisdiction.
    Response: The final rule adds a reference to Sec.  1919 of the Act, 
which allows for Tribal-State agreements governing jurisdiction.
    Comment: A commenter stated that PR Sec.  23.110(b) would 
apparently preclude the State from providing safety investigative 
services it currently provides when a child is domiciled on reservation 
but located off reservation.
    Response: The final rule addresses dismissals of State-court child-
custody proceedings based on lack of jurisdiction. It does not affect 
State authority to provide safety investigative services when a child 
is domiciled on reservation but located off reservation.
    Comment: A commenter suggested adding to PR Sec.  23.110(c) that 
the State court must contact the Tribal court not only when the child 
has lived on a reservation, but also if the State court has reason to 
believe the child may be a ward of Tribal court.
    Response: The final rule clarifies that the Tribe has jurisdiction, 
notwithstanding the Indian child's residence or domicile off 
reservation, if the child is a ward of the Tribal court. See FR Sec.  
23.110(b). The State court may need to contact the Tribal court to 
confirm the child's status as a ward of that court. In addition, the 
final rule identifies the child's status as a ward of a Tribal court as 
one of the ``reasons to know'' that the child is an Indian child, FR 
Sec.  23.107(c)(5), a status which may trigger certain notice 
requirements. See FR Sec.  23.111.
    Comment: A few commenters suggested allowing an exemption for 
dismissal in emergency cases. These commenters stated that this 
exemption is necessary to ensure the safety of the child, so the State 
does not dismiss proceedings until the Tribe has asserted jurisdiction.
    Response: FR Sec.  23.110 includes the introductory provision 
``subject to Sec.  23.113 (emergency proceedings)'' to ensure that the 
child is not subjected to imminent physical damage or harm.
    Comment: One commenter noted that if PR Sec.  23.110(c) continues 
to require the State court to contact the Tribal court, then BIA should 
maintain a comprehensive list of Tribal courts and their contact 
information.
    Response: If the State court does not have contact information for 
the Tribal court, the Tribe's designated ICWA agent may provide that 
information. The BIA publishes, on an annual basis, a list of contacts 
designated by each Tribe for receipt of ICWA notices in the Federal 
Register and makes the list available at www.bia.gov.
    Comment: A commenter suggested BIA compile a list of which 
reservations are subject to a Tribe's exclusive jurisdiction for child-
welfare

[[Page 38809]]

proceedings and make this information readily available to States, to 
allow them to determine whether the Tribe exercises exclusive 
jurisdiction over a particular reservation.
    Response: Each Tribe's ICWA designated contact will have 
information on whether the Tribe exercises exclusive jurisdiction.

F. Notice

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

[[Page 38810]]

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

[[Page 38811]]

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

[[Page 38812]]

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

[[Page 38813]]

    Response: The final rule combines the two proposed lists to 
establish one list of factors indicative of significant contacts 
because the court is making the same determination on ``more 
significant contacts'' in both provisions of the proposed rule. The 
proposed lists varied slightly from each other, so the final list 
reconciles them in two ways: first, by including the preferences of 
parents, rather than both parents and extended family members who may 
become placements, because that would require speculation about 
prospective placements that is not directly relevant to the question of 
which Tribe the child has more significant contacts; and second, by 
deleting ``availability of placements'' as a factor, for the reason 
discussed below. See FR Sec.  23.109(c).
    Comment: A few commented on inclusion of the availability of 
placements in the list of factors. One stated that inclusion of this 
factor is wise as long as courts do not question the suitability of 
placements. Another stated that it should not be included as a factor 
because it has nothing to do with the contact the child has had with 
the Tribe.
    Response: The final rule deletes this factor because it is not 
relevant to the question of with which Tribe the child has more 
significant contacts.
    Comment: One commenter opposed the requirement to notify ``all 
Tribes'' that a determination of the child's Tribe has been made 
because it would require another round of notices to Tribes that 
already determined the child is not theirs and another Tribe would be 
involved.
    Response: The final rule does not include the proposed requirement 
to notify all Tribes of a determination of the child's Tribe.
6. Notice for Each Proceeding
    Comment: A commenter stated that the notice should list the date, 
time, and location of the hearing, the issue to be heard, and the 
consequences of any requested ruling.
    Response: The final rule lists required information in the notice, 
including the date, time, and location of the hearing if the hearing 
has been scheduled at the time notice is sent. The final rule requires 
the notice to include contact information for the court to ensure the 
recipient may contact the court for information on any hearings and 
requires the notice to state the potential legal consequences of the 
proceeding. See Sec.  23.111(d)(6)(vii)-(viii).
    Comment: A commenter requested clarification that PR Sec.  
23.111(h) does not allow parties to waive timely notice.
    Response: The statute provides that no placement shall occur if the 
requirements for notice, including the timing of the notice, are not 
met. See 25 U.S.C. 1912(a). These statutory provisions are implemented 
at FR Sec.  23.112(a).
7. Notice in Interstate Placements
    Comment: A few commenters stated their support of PR Sec.  
23.111(i), which requires both the originating and receiving States to 
provide notice if a child is transferred interstate. Some of these 
commenters referred to the facts underlying the Adoptive Couple v. Baby 
Girl case and asserted that this provision would help prevent a similar 
situation.
    A few commenters opposed this provision. Most of these commenters 
suggested the sending State should be responsible for providing notice 
because the receiving State would not be aware of the placement and 
have no court case or opportunity to provide notice. Another stated 
that notice should be required only in the State where the court 
proceeding is pending. One stated that this requirement will result in 
duplicative notices and cause potential confusion. A few commenters 
stated that this requirement would strain already overburdened 
resources.
    Response: The final rule deletes this provision, as this subject is 
not directly addressed in the statute. However, BIA encourages such 
notification as a recommended practice.
8. Notice in Voluntary Proceedings
    Comments regarding notice in voluntary proceedings are addressed in 
Section IV.L.2 of this preamble, below.

G. Active Efforts

    ICWA requires that any party seeking to effect a foster-care 
placement of, or termination of parental rights to, an Indian child 
must satisfy the court that active efforts have been made to provide 
remedial services and rehabilitative programs to prevent the breakup of 
the Indian family and that these efforts have proved unsuccessful. 25 
U.S.C. 1912(d). This is one of the key provisions in ICWA designed to 
address Congress' finding that the removal of many Indian children was 
unwarranted. 25 U.S.C. 1901(4). The active-efforts requirement helps 
protect against these unwarranted removals by ensuring that parents who 
are or may readily become fit parents are provided with services 
necessary to retain or regain custody of their child.
    The active-efforts requirement embodies the best practice for all 
child-welfare proceedings, not just those involving an Indian child. 
Natural parents possess a ``fundamental liberty interest'' in the care, 
custody, and management of their child, and this interest ``does not 
evaporate simply because they have not been model parents or have lost 
temporary custody of their child to the State.'' Santosky v. Kramer, 
455 U.S. 745, 753 (1982). And until a parent has been proven to be 
unfit, the child shares with the parent ``a vital interest in 
preventing erroneous termination of their natural relationship.'' Id. 
at 760. For proceedings involving an Indian child, the active-efforts 
requirement helps protect these interests.
    The Department finds compelling the views of child-welfare 
specialists who opine that ``the cornerstone of an effective child-
welfare system is the presumption that children are best served by 
supporting and encouraging their relationship with fit birth parents 
who are interested in raising them and are able to do so safely.'' See, 
e.g., Comments of Casey Family Programs, et al., at 1 (comments 
submitted on behalf of a group of national organizations, associations, 
and professors); see also Brief of Casey Family Programs, et al., 
Adoptive Couple v. Baby Girl, at 7. These specialists note that 
``[a]mong the most important components of a sound child-welfare system 
is the requirement for agencies and others responsible for children's 
well-being to be vigilant in striving to keep children in their 
families; to remove them only when necessary to protect them from 
serious harm; and to work diligently to assist families with overcoming 
obstacles to children's safe return promptly.'' Comments of Casey 
Family Programs, et al., at 3; see also National Council of Juvenile 
and Family Court Judges, Adoption and Permanency Guidelines: Improving 
Court Practice in Child Abuse and Neglect Cases 5 (2000). Congress has 
recognized this principle in other contexts as well. See 42 U.S.C. 671 
(requiring State plan for foster care and adoption assistance to 
provide that reasonable efforts will be made to prevent or eliminate 
the need for removal of the child from his home and to make it possible 
for the child to return to his home.)
    The active-efforts requirement in ICWA reflects Congress' 
recognition of the particular history of the treatment of Indian 
children and families, and the need to establish a Federal standard for 
efforts to maintain Indian families. After extensive hearings in the 
1970s, Congress recognized that the social conditions, including 
poverty, facing many Tribes and Indian people--some brought about or 
exacerbated by Federal policies--were often cited as a reason for the 
removal of children by State and

[[Page 38814]]

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

[[Page 38815]]

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

[[Page 38816]]

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

H. Emergency Proceedings

    The provisions concerning jurisdiction over Indian child-custody 
proceedings are ``[a]t the heart of the ICWA,'' with the statute 
providing that Tribes have exclusive jurisdiction over some child-
custody proceedings and presumptive jurisdiction over others. 
Holyfield, 490 U.S. at 36. Recognizing, however, that a Tribe may not 
always be able to take swift action to exercise its jurisdiction, 
Congress authorized States to take temporary emergency action. 
Specifically, section 1922 of ICWA was designed to ``permit, under 
applicable State law, the emergency removal of an Indian child from his 
parent or Indian custodian or emergency placement of such child in 
order to prevent imminent physical harm to the child notwithstanding 
the provisions of'' ICWA. H.R. Rep. No. 95-1386, at 25; 25 U.S.C. 1922.
    Congress, however, imposed strict limitations on this emergency 
authority, requiring that the emergency proceeding terminates as soon 
as it is no longer

[[Page 38817]]

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

[[Page 38818]]

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

[[Page 38819]]

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

[[Page 38820]]

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

[[Page 38821]]

removal petition is considered an initiation of a child-custody 
proceeding. Other commenters stated that the ICWA proceeding should be 
initiated at the same time as the emergency proceeding, because 
emergency proceedings are generally only subject to State law.
    Response: The statute treats emergency proceedings, at section 
1922, differently from other child-custody proceedings. The final rule 
clarifies ``emergency proceedings'' to be emergency removals and 
emergency placements, which are proceedings distinct from ``child-
custody proceedings'' under the statute. While States use different 
terminology (e.g., preliminary protective hearing, shelter hearing) for 
emergency hearings, the regulatory definition of emergency proceedings 
is intended to cover such proceedings as may be necessary to prevent 
imminent physical damage or harm to the child. The emergency 
proceedings should be as short as possible and may end with the 
initiation of a child-custody proceeding subject to the provisions of 
ICWA (e.g., the notice required by Sec.  23.111, time limits required 
by Sec.  23.112).
    Comment: One commenter stated that the provision at PR Sec.  
23.113(h) requiring a child to be returned to a parent within one 
business day may not be possible in parts of Alaska in which villages 
can be weathered out for days.
    Response: The statute provides that emergency removal and placement 
must end when no longer necessary to prevent imminent physical damage 
and harm. We understand that it may not be possible to return a child 
within one business day.
7. Emergency Proceedings--Miscellaneous
    Comment: A few commenters suggested replacing the term ``emergency 
physical custody'' with ``emergency placement'' for consistency.
    Response: The final rule incorporates this suggestion.

I. Improper Removal

    FR Sec.  23.114 implements section 1920 of the statute. It requires 
that, where a court determines that a child has been improperly removed 
from custody of the parent or Indian custodian or has been improperly 
retained in the custody of a petitioner in a child-custody proceeding, 
the court should return the child to his parent or Indian custodian 
unless returning the child to his parent or custodian would subject the 
child to a substantial and immediate danger or threat of such danger. 
25 U.S.C. 1920.
    Comment: A commenter stated that PR Sec.  23.114(b) should refer to 
the standard in ICWA section 1920 (``substantial and immediate danger 
or threat of danger'') specific to improper removals rather than the 
standard in 25 U.S.C. 1922 (``imminent physical damage or harm'') 
specific to emergency removals. A commenter requested adding ``Indian'' 
before ``custodian.''
    Response: The final rule incorporates these suggested changes to 
more closely reflect the statutory language. See FR Sec.  23.114(b).
    Comment: A few State commenters stated that the proposed rule's 
provisions on improper removal exceed ICWA and are beyond BIA's 
authority. One stated there is no standard for when a person can 
request a stay and demand an additional hearing to determine if removal 
was improper, and the other stated that requiring an immediate stay 
creates a substantive requirement that may unreasonably preclude the 
State protective services from securing an order of protection from the 
court.
    Response: The final rule replaces the requirement for the State 
court to stay the proceedings with a requirement that the State court 
expeditiously make the determination as to whether the removal was 
improper. See FR Sec.  23.114(a).
    Comment: A commenter suggested rewording this section to require 
the court to terminate the proceeding and return the child if any party 
asserts improper removal or the court has reason to believe the removal 
was improper due to expert testimony not having been presented at the 
time of removal.
    Response: The final rule does not incorporate this suggestion 
because the statute does not require expert testimony at the time of 
removal.

J. Transfer to Tribal Court

    25 U.S.C. 1911(b) provides for the transfer of any State court 
proceeding for the foster-care placement of, or termination of parental 
rights to, an Indian child not domiciled or residing within the 
reservation of the Indian child's Tribe. This provision recognizes that 
Indian Tribes maintain concurrent jurisdiction over child-welfare 
matters involving Tribal children, even off of the reservation. In 
enacting ICWA, Congress recognized that child-custody matters involving 
Tribal children are ``essential tribal relation[s],'' see Williams v. 
Lee, 358 U.S. 217 (1959), that fall squarely within a Tribe's right to 
govern itself. H.R. Rep. No. 95-1386, at 14-15. Congress also 
recognized that State courts were often not well-informed about Indian 
culture, and may not correctly assess the standards of child abuse and 
neglect in this context. Id. at 11. Tribal-court jurisdiction remedies 
this problem.
    Tribal courts are also well-equipped to handle child-welfare 
proceedings, including those involving non-member parents. Congress has 
repeatedly sought to strengthen Tribal courts, and has recognized that 
Tribal justice systems are an essential part of Tribal governments. 25 
U.S.C. 3601(5), 3651(5); see also S. Rep. No. 103-88, at 8 (1993) 
(noting that 25 U.S.C. 3601(6) ``emphasize[s] that tribal courts are 
permanent institutions charged with resolving the rights and interests 
of both Indian and non-Indian individuals''); Indian Self-Determination 
and Education Assistance Act of 1975, 25 U.S.C. 450, 450a (providing 
funding and assistance for Tribal government institutions, including 
courts); Indian Tribal Justice Act of 1993, 25 U.S.C. 3601 et seq. 
(establishing the Office of Tribal Justice Support within the Bureau of 
Indian Affairs and authorizing up to $50 million annually to assist 
Tribal courts).
    The final rule reflects 25 U.S.C. 1911(b)'s requirement that a 
child-custody proceeding be transferred to Tribal court upon petition 
of either parent or the Indian custodian or the Indian child's Tribe, 
except in three circumstances: (1) where either parent objects; (2) 
where the Tribal court declines the transfer; or (3) where there is 
good cause to the contrary. The first two exceptions are fairly 
straightforward. The third exception is not defined in the statute, and 
in the Department's experience, has in the past been used to deny 
transfer for reasons that frustrate the purposes of ICWA. The 
legislative history indicates that this provision is intended to permit 
a State court to apply a modified doctrine of forum non conveniens, in 
appropriate cases, to insure that the rights of the child as an Indian, 
the Indian parents or custodian, and the Tribe are fully protected. See 
H.R. Rep. No. 95-1386, at 21. The Department finds that this indicates 
that Congress intended for the transfer requirement and its exceptions 
to permit State courts to exercise case-by-case discretion regarding 
the ``good cause'' finding, but that this discretion should be limited 
and animated by the Federal policy to protect the rights of the Indian 
child, parents, and Tribe, which can often best be accomplished in 
Tribal court. Exceptions cannot be construed in a manner that would 
swallow the rule.
    Accordingly, the final rule does not mandate or instruct State 
courts as to how they must conduct the good-cause analysis. Rather, the 
final rule provides certain procedural protections, and also

[[Page 38822]]

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

[[Page 38823]]

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

[[Page 38824]]

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

[[Page 38825]]

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

[[Page 38826]]

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

[[Page 38827]]

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

[[Page 38828]]

K. Adjudication

1. Access to Reports and Records
    ICWA and these rules require that access to certain records be 
provided to certain parties. For example, ICWA provides that each party 
to an ICWA foster-care-placement or termination-of-parental-rights 
proceeding has the right to examine all reports or other documents 
filed with the court upon which any decision with respect to such 
action may be based. 25 U.S.C. 1912(c); FR Sec.  23.134. In order to 
comport with due process requirements, the final rule also extends this 
right to parties to emergency proceedings. FR Sec.  23.134. Tribes that 
are parties to such proceedings are entitled to receipt of the 
documents upon which a decision may be based. In addition, the notice 
provisions of FR Sec.  23.111(d) require that Tribes be provided the 
document by which the child-custody proceeding was initiated (as well 
as other information), and FR Sec.  23.141 requires that States make 
available to an Indian child's Tribe the placement records for that 
child's child-welfare proceedings.
    Comment: A few commenters suggested clarifying that the child's 
Tribe has the right to timely receipt of documents filed with the court 
or upon which a decision may be based. One stated that such access is 
necessary for the Tribe to determine whether to intervene. Two Tribes 
stated that States refuse them access to information on the basis of 
confidentiality.
    Response: States cannot refuse to provide an Indian child's Tribe 
with access to information about that child's proceedings. ICWA 
expressly provides for Tribal access to certain records, and makes no 
exception for confidentiality concerns (which presumably are present in 
all child-custody proceedings). Tribes are sovereign entities that have 
concurrent jurisdiction over child-custody proceedings, and they should 
have the ability to review documents relevant to those proceedings. 
Further, the Indian Child Protection and Family Violence Protection Act 
addresses this concern, providing that State agencies that investigate 
and treat incidents of child abuse should provide information and 
records to Tribal agencies that need to know the information in 
performance of their duties to the same extent they would provide the 
information and records to Federal agencies. 25 U.S.C. 3205. Therefore, 
confidentiality generally is not a valid basis to withhold information 
and records to the Indian child's Tribe. The rule does not incorporate 
this provision because it is not unique to ICWA implementation.
    Comment: One commenter stated the rule should clarify that Tribes 
have a right to both discovery and disclosure of every document, and 
should not be required to pay for photocopying of documents that other 
parties receive.
    Response: State agencies must share records with Tribal agencies 
that are parties to child-custody cases as they would other parties and 
governmental entities. The rule does not, however, address payment of 
such charges, as the issue is not addressed in the statute.
    Comment: One commenter requested the rule require States to allow 
Tribes at least three business days to review records.
    Response: The statute does not require States to provide Tribes 
with a certain time period for reviewing records, but all parties 
should be provided sufficient time to review the records to allow for 
meaningful participation in the proceeding.
    Comment: One commenter opposed PR Sec.  23.119(b) (the court's 
decisions must be based only upon documents in the record), because it 
suggests that agreed orders entered into between the parties could not 
be off the record or ex parte, despite local practice and State 
statutory authority, and could overload State courts by requiring all 
cases to be heard on the record.
    Response: ICWA requires clear and convincing evidence for foster-
care placements and evidence beyond a reasonable doubt for termination 
of parental rights, each of which would necessarily require 
documentation in the record. This does not foreclose agreed orders, but 
the court must still make the statutorily required findings.

2. Standard of Evidence for Foster-Care Placement and Termination

a. Standard of Evidence for Foster-Care Placement
    Comment: Several commenters supported PR Sec.  23.121(a), 
establishing the standard of evidence applicable to foster-care 
placement. A few commenters suggested strengthening PR Sec.  23.121(a) 
and (b) by changing ``may not'' to ``must not'' or ``shall not'' to 
make it more clearly mandatory. One commenter stated that while ``may 
not'' is the phrase used by the statute, it does not depart from the 
intent of ICWA to use ``shall not.''
    Response: The final rule changes ``may not'' to ``must not'' as 
requested to clarify that the standard of evidence is mandatory.
    Comment: Several commenters pointed out that PR Sec.  23.121(a), 
establishing that the court may not order foster-care placement unless 
continued custody is likely to result in serious physical damage or 
harm to the child uses the phrase ``serious physical damage or harm to 
the child'' while the statute, at section 1912(e), uses ``serious 
emotional or physical damage to the child.'' Commenters opposed the 
omission of ``emotional'' as beyond the authority granted by the 
statute. Some assumed this was an inadvertent omission, while others 
interpreted this as meaning that foster care may not be ordered even 
where parents are inflicting serious emotional harm on the Indian 
child.
    Response: The proposed rule mistakenly omitted the term 
``emotional'' in PR Sec.  23.121(a) and instead used the term ``harm.'' 
The final rule more closely tracks the statutory language, using the 
phrase ``serious emotional or physical damage to the child.'' See FR 
Sec.  23.121(a).
b. Standard of Evidence for Termination
    One commenter suggested changing ``continued custody of the child 
by the parent or Indian custodian'' in PR Sec.  23.121(b) to ``custody 
of the child by either parent or Indian custodian.''
    Response: The final rule retains the proposed language stating 
``continued custody of the child by the parent or Indian custodian'' 
because this is the statutory language. See 25 U.S.C. 1912(f), FR Sec.  
23.121(b).
c. Causal Relationship
    Comment: One commenter noted that PR Sec.  23.121(c) requires a 
showing of a relationship between particular conditions but it does not 
say in the second item how these conditions relate. The commenter 
suggested clarifying in both (c) and (d), that the actions are directly 
putting the children in danger. A commenter noted that the word 
``between'' is confusing in PR Sec.  23.121(c).
    Response: The final rule addresses the commenters' concerns by 
revising the language to clarify that there must be a causal 
relationship between the particular conditions in the home and the risk 
of serious emotional or physical damage to the child. See FR Sec.  
23.121(c).
    Comment: A commenter stated that the requirement for a causal 
relationship should apply to both clear and convincing evidence for 
foster-care placement and beyond a reasonable doubt for termination of 
parental rights because the statute establishes these evidentiary 
standards in mirroring provisions.
    Response: The final rule requires the causal relationship for both 
clear and convincing evidence for foster-care placement and beyond a 
reasonable

[[Page 38829]]

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

[[Page 38830]]

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

[[Page 38831]]

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

[[Page 38832]]

having such knowledge. See FR Sec.  23.122(a), (b).
    Comment: One commenter suggested considering Native elders 
knowledgeable about ICWA and the family's heritage, etc., as qualified 
expert witnesses.
    Response: Any potential qualified expert witness, including Native 
elders, would need to meet the requirements of FR Sec.  23.122 to 
testify on whether continued custody is likely to result in serious 
emotional or physical damage to the child. The court may allow experts 
to testify for other purposes as well.
    Comment: Several commenters suggested further improving the 
regulation by providing that the Tribe will designate and authorize the 
expert witness. Several other commenters requested clarification that, 
while the Tribe may assist in locating an expert, it is under no 
obligation to do and that the Tribe's failure to do so does not absolve 
the State of its obligation. A few other commenters requested requiring 
the State to seek assistance from the Tribe or the BIA agency if the 
Tribe is unable to be contacted. Another commenter noted that the Tribe 
is often the State's opposing party, so it shouldn't be required to 
seek assistance from the Tribe.
    Response: The final rule provides that the court or any party may 
request the assistance of the Indian child's Tribe or the BIA agency 
serving the Indian child's Tribe in locating persons qualified to serve 
as expert witnesses. This is not required.
    Comment: Several commenters requested a new provision prohibiting 
the qualified expert witness from being employed by the State agency 
due to a concern about the potential that the State worker may have a 
bias, and noting that the original intent of the requirement for a 
qualified expert witness was to combat such bias. Others requested the 
prohibition be extended to private agencies and Federal agencies. These 
commenters stated that it is a conflict of interest, or at least the 
appearance of impropriety, for the agency seeking placement to claim to 
be an expert in whether the child should be placed.
    Response: The final rule adds a provision prohibiting the social 
worker that is regularly assigned to the child from serving as the 
qualified expert witness, to help to address concerns regarding bias or 
conflicts. In addition, this provision reflects the congressional 
direction that ``[t]he phrase `qualified expert witnesses' is meant to 
apply to expertise beyond the normal social worker qualifications.'' 
H.R. Rep. No. 95-1386, at 22.
    Comment: One commenter noted that because the standard of evidence 
for foster-care placement and termination of parental rights hinges on 
harm to the child, the qualified expert should be someone familiar with 
the child, not just the Tribe. A commenter suggested requiring the 
qualified expert witness to make contact with the parents and make an 
effort to view interactions between the parents and child, and attempt 
to meet with extended family members involved in the child's life. 
Otherwise, the expert will rely on one-sided State reports.
    Response: The commenter's suggestions are recommended practices.

L. Voluntary Proceedings

    Certain ICWA requirements apply to voluntary proceedings. The 
statute defines ``child-custody proceeding'' broadly to include foster-
care, preadoptive, and adoptive placements, without regard to whether 
those placements are made with or without the consent of the parent(s). 
25 U.S.C. 1903(1). Similarly, termination-of-parental-rights 
proceedings fall within the statutory definition whether or not the 
termination is voluntary or involuntary. Id.
    The statute does not condition Tribal court jurisdiction over 
Indian child-custody proceedings on whether that proceeding is 
voluntary or involuntary. Rather, exclusive Tribal jurisdiction is 
recognized over any child-custody proceeding involving an Indian child 
who resides or is domiciled within the reservation of the Tribe under 
25 U.S.C. 1911(a). See also generally Holyfield. Transfer and 
intervention rights apply in any State court proceeding for the foster-
care placement of, or termination of parental rights to, an Indian 
child. 25 U.S.C. 1911(b), (c). Similarly, section 1915 of the statute 
provides placement preferences that apply in any adoptive placement of 
an Indian child under State law, without specifying whether that 
adoption is the result of a voluntary or involuntary termination of 
parental rights. And, section 1913 of the statute specifically 
addresses voluntary proceedings, and provides a number of significant 
protections to parents.
    The Department is cognizant that voluntary proceedings require 
consideration of the interests of the Indian child's biological parents 
to direct the care, custody, and control of their child. See, e.g., 
Troxel v. Granville, 530 U.S. 57, 65 (2000). The rights of the child, 
including the rights of the child as an Indian, must also be 
considered. State and Tribal governments also have a sovereign interest 
in protecting the welfare of the child. And Congress has articulated a 
clear Federal interest in protecting Indian children and the survival 
of Tribes. State law varies in how these various interests are 
considered and protected.
    ICWA balances these important and sometimes competing 
considerations. It recognizes that Tribes have exclusive jurisdiction 
over child-custody proceedings involving children domiciled on the 
reservation, and the right to seek transfer or intervene in foster-care 
or termination-of-parental rights proceedings involving off-reservation 
children. The final rule retains this balance, and makes clear that 
ICWA's placement preferences apply to voluntary placements, but also 
permits departure from those preferences based on various factors, 
including the request of one or both parents, if they attest that they 
have reviewed the placement options, if any, that comply with the order 
of preference. FR Sec.  23.132(c). This balances the importance of the 
placement preferences with the rights of the parent.
    For clarity, the final rule indicates in FR Sec.  23.104 which 
provisions apply to voluntary proceedings. The final rule also provides 
specific standards for voluntary proceedings. In particular:
     Section 23.124(a) and (b) provide the minimum requirements 
for State courts to determine whether the child is an ``Indian child'' 
as defined by statute. If there is reason to believe that the child is 
an ``Indian child,'' but this cannot be confirmed based on the evidence 
before the State court, it must ensure that the party seeking placement 
sought verification of the Indian child's status with the Tribes of 
which the child might be a citizen. The determination of whether the 
child is an ``Indian child'' is a threshold inquiry; it affects the 
jurisdiction of the State court and what law applies to the matter 
before it. See, e.g., In re A.G., 109 P.3d 756, 758 (Mont. 2005) 
(whether child is an ``Indian child'' is a ``threshold inquiry'' and 
must be definitively resolved before termination of parental rights). 
Section (a) mirrors the provision in the proposed rule; section (b) was 
added to clarify the obligation to confirm a child's status as an 
``Indian child.''
     FR Sec.  23.124(c) clarifies that the regulatory 
provisions addressing the application of the placement preferences 
apply with equal force to voluntary proceedings.
     The final rule does not include a provision requiring 
agencies and State courts to provide notice to the Indian Tribe of 
voluntary proceedings. As a practical matter, notice to the Tribe may 
be required in order to comply with

[[Page 38833]]

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

A few commenters asserted that the proposed requirement for notice in 
voluntary proceedings addresses an ambiguity in the statute: The 
provision at section 1913 addressing consent for voluntary termination 
does not address how the provision interacts with other provisions of 
the Act. A few commenters stated that the proposal addresses Congress's 
concern about both State and private agency adoptions. These commenters 
assert that birth parents' rights are balanced against the government's 
interest in the child's safety.
    One commenter noted that while the statute explicitly requires 
notice in involuntary proceedings, it does not preclude notice in 
voluntary proceedings. Other stated reasons for support of requiring 
notice in voluntary proceedings were:
     Voluntary adoptions are often used to skirt around ICWA;
     Including the Tribe in voluntary placements will help find 
suitable placements and lead to placement stability;
     Requiring notice in voluntary proceedings is consistent 
with several State laws, including California SB 678 and the Oklahoma 
Indian Child Welfare Act, and Tribal-State agreements, and that 
nationalization of the requirement ensures equal treatment on the issue 
across jurisdictions;
     Requiring notice allows the Tribe the opportunity to 
assist the mother with any situations leading her to feel that she 
cannot raise her child.
    A few commenters suggested adding that the notice to Tribes of 
voluntary

[[Page 38834]]

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

[[Page 38835]]

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

[[Page 38836]]

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

[[Page 38837]]

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

[[Page 38838]]

also suggested requiring the court to notify the consenting parent 
every 120 days following the consent, to keep them informed as to the 
progress of adoptive placement in case an adoption never occurs.
    Response: The final rule does not incorporate these requirements, 
as the statute does not require such notice.
9. Confidentiality and Anonymity in Voluntary Proceedings
    Comment: Many commenters opposed the proposed rule on the basis 
that it would violate the parents' right to privacy, confidentiality, 
and anonymity in choosing a placement. Among the problematic provisions 
these commenters pointed to were:
     PR Sec.  23.123(a) requiring an inquiry be made into 
whether the child is an Indian child in voluntary proceedings, because 
this will result in the parents losing their privacy and 
confidentiality, particularly in small Tribal communities; and
     The requirement to inform members of the Indian child's 
extended family, in order to identify a placement.
    These commenters noted that the 1979 guidelines stated that the Act 
gives confidentiality a ``much higher priority'' in voluntary 
proceedings, and that the Act directs State courts to respect parental 
requests for confidentiality in voluntary proceedings.
    Response: The final rule requires, for the reasons already stated, 
that the State court determine whether the child is an ``Indian child'' 
which may, in some instances, require contacting the Tribe. The final 
rule does not mandate contacting extended family members to identify 
potential placements. The final rule also includes several protections 
to ensure confidentiality. Among these are the following:
     With regard to inquiry and verification, the final rule 
provides that, where a consenting parent requests anonymity, both the 
State court and Tribe must keep relevant documents and information 
confidential. See FR Sec.  23.107(d).
     With regard to a parent or Indian custodian's consent to a 
placement or termination of parental rights, the final rule provides 
that, where confidentiality is requested or indicated, the parent or 
Indian custodian does not need to execute the consent in a session of 
court open to the public, as long as he or she executes the consent 
before a judge. See FR Sec.  23.125(d).

M. Dispositions

    In ICWA, Congress expressed a strong Federal policy in favor of 
keeping Indian children with their families and Tribes whenever 
possible. Section 1915, which lays out the placement preferences, 
constitutes the ``most important substantive requirement [that ICWA] 
imposed on state courts.'' Holyfield, 490 U.S. at 36. It establishes a 
series of preferred placements for foster care, preadoptive, and 
adoptive placements. It also allows the Indian child's Tribe to 
establish a different order of preference. The party urging that the 
ICWA preferences not be followed bears the burden of proving by clear 
and convincing evidence the existence of ``good cause'' to deviate from 
such a placement. 25 U.S.C. 1915(a), (b); FR Sec.  23.132(b).
    Congress established preferred placements in ICWA that it believed 
would help protect the needs and long-term welfare of Indian children 
and families, while providing the flexibility to ensure that the 
particular circumstances faced by individual Indian children can be 
addressed by courts. In Sec. Sec.  23.129-23.132, the final rules 
provide guidance to States to ensure nationwide uniformity of the 
application of these placement preferences as well as the standards for 
finding good cause to deviate from them.
    The preferences in ICWA and the final rule codify the best practice 
in child welfare of favoring extended family placements, including 
placement within a child's broader kinship community. If a child is 
removed from her parents, the first choice in child-welfare practice 
for an alternative placement--for all children, not just Indian 
children--is the child's extended family. See National Council of 
Juvenile and Family Court Judges, Adoption and Permanency Guidelines: 
Improving Court Practice in Child Abuse and Neglect Cases 10-11 (2000) 
(``An appropriate relative who is willing to provide care is almost 
always a preferable caretaker to a non-relative.''); Child Welfare 
League of America, Standard of Excellence for Adoption Services 1.10 
(2000) (2000) (``Adoption Standards'') (``The first option considered 
for children whose parents cannot care for them should be placement 
with extended family members . . .''); Child Welfare League of America, 
Standard of Excellence for Kinship Care Services 1.4 (2000) (``Kinship 
Care Standards'') (``Kinship care . . . should be the first option 
considered . . .''); Elaine Farmer & Sue Moyers, Kinship Care: 
Fostering Effective Family and Friends Placements (2008).
    Placing children with their extended family benefits children. See 
Adoption Standards 8.24, 4.23 (kinship care ``maximizes a child's 
connection to his or her family''); Tiffany Conway & Rutledge Hutson, 
Is Kinship Care Good for Kids?, Center for Law and Social Policy 2 
(Mar. 3, 2007) (``[T]he research tells us that many children who cannot 
live with their parents benefit from living with grandparents and other 
family members.'') (emphasis omitted). This is true for children who 
are placed in foster care as well as those who are adopted. See Kinship 
Care Standards, at 5 (noting beneficial outcomes of kinship care for 
foster care including children being less likely to experience multiple 
placements and more likely to be successfully reunified with their 
parents); Adoption Standards Sec.  4.23; Marc A. Winokur, et al., 
Matched Comparison of Children in Kinship Care and Foster Care on Child 
Welfare Outcomes, 89 Families in Soc'y: J. Contemp. Soc. Sciences 338, 
344-45 (2008) (reporting better outcomes for children in kinship care 
on several metrics). Congress recognized that this general child-
welfare preference for placement with family is even more important for 
Indian families, as one of the driving concerns leading to the passage 
of ICWA ``was the failure of non-Indian child welfare workers to 
understand the role of the extended family in Indian society.'' 
Holyfield, 490 U.S. at 35 n.4.
    Even if biological relatives are not available for placements, 
there are benefits to children from placements within their community, 
which Congress recognized by establishing placement preferences for 
Tribal members. 25 U.S.C. 1915(a), (b). Again, this is not just a 
principle of child-welfare practice for Indian children, but for all 
children. See Kinship Care Standards Sec. Sec.  1.1, 2.8. But it has 
special force and effect for Indian children, since, as Congress 
recognized, there are harms to individual children and parents caused 
by disconnection with their Tribal communities and culture, and also 
harms to Tribes caused by the loss of their children.
    Recognizing the benefits of placements with family and within 
communities, Congress has repeated its emphasis on such placements in 
subsequent statutes in the years since it passed ICWA. For example, in 
order to obtain Federal matching funds, a State must consider giving 
preference to an adult relative over a non-related caregiver when 
determining a placement for a child, provided that the relative 
caregiver meets all relevant State child protection standards, and must 
exercise ``due diligence'' to identify, locate, and notify relatives 
when children enter the foster care

[[Page 38839]]

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

[[Page 38840]]

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

[[Page 38841]]

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

[[Page 38842]]

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

[[Page 38843]]

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

[[Page 38844]]

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

[[Page 38845]]

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

[[Page 38846]]

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

[[Page 38847]]

concern about preventing serious emotional or physical damage to a 
child. In addition, the final rule retains discretion for State courts 
to consider other factors when necessary.
6. Placement Preferences Presumed To Be in the Child's Best Interest
    Many commented on the intersection of a ``best interests analysis'' 
with ICWA's placement preferences. A high-level summary of these 
comments is provided here. Several commenters stated that a ``best 
interest of the child'' analysis is not appropriate for Indian 
children, for the following reasons.
     ICWA compliance already presumptively furthers best 
interests of the child and represents best practices in child welfare 
generally.
     There is a movement in literature to replace the ``best 
interest'' consideration altogether in favor of the least detrimental 
among available alternatives for the child, to focus on causing no harm 
to the child, rather than an implication that courts or agencies are 
well-positioned to determine what is ``best.''
     ICWA was passed to overcome the bias, often subconscious, 
and lack of knowledge about Tribes and Indian children, and leaving 
``best interests'' to be argued by individuals opposing ICWA's 
preferences evades ICWA's purposes. The ``best interests'' analysis is 
inherently open to bias.
     The ``best interests of the child'' analysis permits 
courts and agencies to ignore the placement preferences at will.
     The ``best interests of the child'' analysis is 
necessarily broader and richer for Indian children because it includes 
connection to Tribal community, identity, language and cultural 
affiliation.
     The ``best interests'' analysis is not appropriate in any 
determination of ``good cause'' because ``good cause'' and ``best 
interest'' appear in different parts of the statute, meaning Congress 
carefully and expressly ``cabined'' each concept, and as such should be 
treated separately.
    Several commenters suggested adding language drawn from the 
Michigan Indian Family Preservation Act on how to determine a child's 
best interests.
    Other commenters asked the Department to keep the focus on the best 
interests of the children and opposed having no independent 
consideration of the best interests of the Indian child for the 
following reasons:
     The presumption that ICWA compliance is in the child's 
best interest is not always true.
     The ``best interests of the child'' analysis is of 
paramount importance.
     The ``best interests of the child'' analysis is compatible 
with ICWA and should be explicitly allowed because ICWA was not enacted 
to ignore the physical and emotional needs of children and that every 
child should have all factors considered for the best possible outcome 
because not doing so would be treating them as possessions.
     The ``best interests of the child'' analysis is not 
different for Indian children.
     Case law establishes that the child's best interests must 
be considered and establishes that the child's best interests should be 
considered in ``good cause'' determinations.
     Not considering the child's best interest violates the 
constitutional rights of the children and parents.
    Response: As discussed above, ICWA and this rule provide objective 
mandates that are designed to promote the welfare and short- and long-
term interests of Indian children. Congress enacted ICWA to protect the 
best interests of Indian children. However, the regulations also 
provide flexibility for courts to appropriately consider the particular 
circumstances of the individual children and to protect those children. 
For example, courts do not need to follow ICWA's placement preferences 
if there is ``good cause'' to deviate from those preferences. The 
``good cause'' determination should not, however, simply devolve into a 
free-ranging ``best interests'' determination. Congress was skeptical 
of using ``vague standards like `the best interests of the child,' '' 
H.R. Rep. No. 95-1386 at 19, and intended good cause to be a limited 
exception, rather than a broad category that could swallow the rule.

N. Post-Trial Rights and Recordkeeping

    The final rule describes requirements and standards for vacating an 
adoption based on consent having been obtained by fraud or duress. It 
also provides clarification regarding the application of 25 U.S.C. 
1914, and the rights to information about adoptee's Tribal 
affiliations, while removing certain obligations the proposed rule 
imposed on agencies. The final rule provides procedures for how notice 
of a change in an adopted Indian child's status is to be provided, 
including provisions for waiver of this right to notice. The final rule 
also contains provisions regarding the transmittal of certain adoption 
records to the BIA, and the maintenance of State records.
1. Petition To Vacate Adoption
    Comment: Several commenters opposed PR Sec.  23.132(a) allowing a 
final decree of adoption to be set aside if the proceeding failed to 
comply with ICWA. These commenters pointed out that section 1913(d) of 
the Act only allows a collateral attack on an adoption decree if 
consent to the adoption was obtained through fraud or duress, not if 
the proceeding failed to comply with ICWA, while section 1914 allows 
for invalidation only of a foster-care placement or termination of 
parental rights if the proceeding failed to comply with ICWA.
    Response: The final rule deletes ``the proceeding failed to comply 
with ICWA'' as a basis for vacating an adoption decree because FR Sec.  
23.136 implements section 1913(d) of the Act, which is limited to 
invalidation based on the parent's consent having been obtained through 
fraud or duress.
    Comment: A commenter pointed out that PR Sec.  23.133(a) refers 
generally to ICWA being violated, but the statute and PR Sec.  
23.133(b) both refer specifically to violations of Sections 1911, 1912, 
or 1913.
    Response: The final rule specifies the appropriate sections of ICWA 
in FR Sec.  23.137(a).
    Comment: Several commenters stated that the two-year statute of 
limitations should not apply to section 1914 actions to invalidate 
foster-care placements and termination of parental rights. Some 
commenters asserted that State statutes of limitations should apply; 
others stated that State statutes of limitations should not apply 
because it would cause uncertainty and inconsistency. One commenter 
suggested adding a statute of limitation of 90 days. A few commenters 
suggested establishing a statute of limitations that allows minors 
three to five years after they turn age 18 to sue for violations of 
their rights under ICWA.
    Response: The final rule clarifies that the two-year statute of 
limitations does not apply to actions to invalidate foster-care 
placements and terminations of parental rights, by clarifying that FR 
Sec.  23.136 applies only to invalidation of adoptions based on 
parental consent having been obtained through fraud or duress. If a 
State's statute of limitations exceeds two years, then the State 
statute of limitations may apply; the two-year statute of limitations 
is a minimum timeframe. See 25 U.S.C. 1913. The statute does not 
establish a statute of limitations for invalidation of foster-care 
placements and termination of parental rights under section 1914, and 
the

[[Page 38848]]

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

[[Page 38849]]

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

[[Page 38850]]

Sec.  23.132. States may require that additional records be maintained.
    Comment: One commenter suggested requiring States to submit annual 
reports assessing compliance with the regulations. Other commenters 
suggested BIA work closely with the U.S. Department of Health and Human 
Services to encourage broader data collection in AFCARS reporting and 
enforcement. A Tribal commenter stated that there are currently no 
reliable data sources for information on Indian children in State care 
and, without accurate numbers, it is difficult to ascertain with any 
precision the needs of Indian children in any State.
    Response: The final rule does not requiring annual reporting. The 
Department is working closely with the Department of Health and Human 
Services on data collection regarding ICWA. See AFCARS Proposed Rule at 
81 FR 20283 (April 7, 2016).
    Comment: A commenter suggested the rule should address the records 
filed with the Secretary, including who may access them, the procedure 
for gaining access, and the timeframe for the Secretary to respond to 
requests for access.
    Response: BIA has maintained a central repository of adoption 
decrees and responds to requests for access. The final rule, at FR 
Sec.  23.71(b), incorporates section 1951(b) of the Act, to clarify 
that someone can request the records from the Secretary.
    Comment: A commenter suggested adding a mechanism for securing the 
information required by PR Sec.  23.136(a) when a State court fails to 
comply, for example, by requiring them to provide the information to 
the Secretary.
    Response: FR Sec.  23.140(a) implements section 1951(a) of the Act 
which establishes a State court responsibility to provide information 
to the Secretary. This provision was formerly located at 25 CFR 
23.71(a).
    Comment: A commenter suggested that the ``good cause'' basis stated 
on the record should be reported in the State database and reported to 
Tribes and adoptees.
    Response: The regulation requires that the State record the basis 
for ``good cause'' to deviate from the preferred placements (see FR 
Sec.  23.129(c)); this information and evidence must be included in the 
court record.
    Comment: A commenter suggested that PR Sec.  23.136 clarify that an 
affidavit requesting anonymity does not preclude disclosure of 
identifying information to the Tribe for the purpose of approving an 
application for Tribal membership, which the Tribe undertakes in its 
sovereign capacity. The commenter also suggested the rule clarify that 
all non-identifying information will still be disclosed, including for 
example, the name and Tribal affiliation of the Tribe and the identity 
of the court or agency with relevant information. The commenter also 
suggests the adoptive parents' identities may be disclosed.
    Response: FR Sec.  23.71(a) implements section 1951(a) of the Act, 
providing a role for the Secretary to provide information as may be 
necessary for the enrollment of an Indian child in the Tribe.
    Comment: A commenter suggested that one parent's affidavit for 
anonymity should not extend anonymity to the other parent.
    Response: An affidavit of one parent would not extend anonymity to 
the other parent.
    Comment: A commenter suggested an affidavit requesting anonymity 
should not preclude disclosure of the adoptive parents' identities.
    Response: The Act only addresses an affidavit of anonymity for the 
biological parent or parents. See 25 U.S.C. 1951(a).
    Comment: A commenter suggested PR Sec.  23.136 should provide for 
notification of foster and adoptive parents of their right and the 
right of their adoptive child upon reaching age 18 to apply for the 
adoption records held by the Secretary.
    Response: Neither the statute nor the final rule require the 
Secretary to proactively reach out to adoptive and foster parents and 
adopted children regarding their records; rather, the Act at section 
1917 and the final rule provide that the State court provides such 
information upon application.
    Comment: The commenter suggested that, when there is an affidavit 
for anonymity, the Secretary notify the biological parent of the 
request and allow them the opportunity to withdraw anonymity if 
desired.
    Response: The parent may have the right to withdraw or rescind an 
affidavit for anonymity under State law; the parent should contact the 
State court or agency for directions.
    Comment: A commenter suggested adding a section to authorize 
release of records maintained by the Secretary to any Indian child, 
parent or Indian custodian, or child's Tribe upon a showing that the 
records are needed as evidence in an action to invalidate a placement 
in violation of Sections 1911, 1912, 1913 or 1915.
    Response: Section 1951 of the Act provides that the Secretary may 
release such information as may be necessary for the enrollment of an 
Indian child . . . or for determining any rights or benefits associated 
with that membership. To the extent a party seeks evidence in an action 
to invalidate a placement in violation of Sections 1911, 1912, 1913, or 
1915, the party would be able to seek that information from the State 
and through discovery.

O. Effective Date and Severability

    The final rule includes a new section, FR Sec.  23.143, that 
provides that the provisions of this rule will not affect a proceeding 
under State law for foster-care placement, termination of parental 
rights, preadoptive placement, or adoptive placement which was 
initiated or completed prior to 180 after the publication date of the 
rule, but will apply to any subsequent proceeding in the same matter or 
subsequent proceedings affecting the custody or placement of the same 
child. This is drawn from the language of 25 U.S.C. 1923.
    This provision ensures that ongoing proceedings are not disrupted 
or delayed by the issuance of this rule and that there is an orderly 
phasing in of the effect of the rule. See H.R. Rep. No. 95-1386, at 25. 
Standards affecting pending proceedings should not be changed in 
midstream. This could create confusion, duplication, and delays in 
proceedings. And, by providing 180 days from the date of issuance for 
the rule to be fully effective, all parties affected--States courts, 
State agencies, Tribes, private agencies, and others--have ample time 
to adjust their practices, forms, and guidance as necessary.
    FR Sec.  23.144 states the Department's intent that if some portion 
of this rule is held to be invalid by a court of competent 
jurisdiction, the other portions of the rule should remain in effect. 
The Department has considered whether the provisions of the rule can 
stand alone, and has determined that they can. For example, the agency 
has considered whether particular provisions that are intended to be 
followed in both voluntary and involuntary proceedings should remain 
valid if a court finds the provision invalid as applied to one type of 
proceeding, and has concluded that they should. The Department has also 
considered whether the particular requirements of the rule (e.g., 
requirements for notice, active efforts, consent, transfer, placement 
preferences) may each function independently if other requirements were 
determined to be invalid. The Department has determined that they can.
    Comment: One commenter stated that the ICWA regulations should be 
retroactive to include all Indian

[[Page 38851]]

children currently involved in ICWA cases.
    Response: As discussed above, the final rule includes a provision 
that mirrors 25 U.S.C. 1923, providing none of the provisions of this 
rule will affect a proceeding which was initiated or completed prior to 
180 days from the date of issuance.

P. Miscellaneous

1. Purpose of Subpart
    Comment: A few commenters supported PR Sec.  23.101 and especially 
supported reiterating that the Indian canons of construction are to be 
used when interpreting ICWA. A few commenters suggested explaining in 
PR Sec.  23.101, for the general public, that ICWA is not a race-based 
preference, but is a political decision because of the government-to-
government relationship between Tribes and the Federal Government.
    Response: The Department agrees that statutes are to be liberally 
construed to the benefit of Indians but determined it was not necessary 
to reiterate that canon here. Further, ICWA is based on an individual's 
political affiliation with a Tribe.
    Comment: A few commenters suggested strengthening the provision 
stating that ICWA establishes minimum Federal standards. These 
commenters suggested adding reference to the national policy is that 
these standards define the best interests of Indian children.
    Response: The statement that ICWA establishes minimum Federal 
standards is sufficient. Congress enacted ICWA to protect the best 
interests of Indian children.
2. Interaction With State Laws
    Comment: A few commenters stated that PR Sec.  23.105, providing 
that if applicable State law provides a higher standard of protection, 
then the State court must apply that standard, should specify that if 
the State imposes sanctions, that constitutes a higher standard of 
protection.
    Response: It is unclear what the commenters mean by ``sanctions.'' 
ICWA provides that, where State or Federal law provides a higher 
standard of protection to the rights of the parent or Indian custodian 
of an Indian child than the rights provided under [ICWA], the State or 
Federal court shall apply the State or Federal standard. 25 U.S.C. 
1921. The final rule is designed to reflect that requirement.
    Comment: One commenter stated that the regulation should emphasize 
that ICWA's provisions in Sections 1911 through 1917 and Sections 1920 
through 1922 are mandatory standards that supplant State law. Other 
commenters requested clarification that minimum Federal standards do 
not supplant State laws and regulations and Tribal-State agreements 
applying standards beyond the minimum Federal standards, and that State 
law and Tribal-State agreements may expand upon or clarify ICWA 
consistent with the statute. A commenter recommended stating that the 
minimum Federal Standards preempt State laws that directly conflict 
with the Federal standards and do not provide heightened protections.
    Response: Congress established minimum Federal standards for the 
removal of Indian children from their families and the placement of 
such children in foster or adoptive homes which will reflect the unique 
values of Indian culture. 25 U.S.C. 1902. Congress's clear intent in 
ICWA is to displace State laws and procedures that are less protective. 
See, e.g., In re Adoption of M.T.S., 489 NW. 2d 285, 288 (Minn. Ct. 
App. 1992) (ICWA preempted Minnesota State law because State law did 
not provide higher standard of protection to the rights of the parent 
or Indian custodian of Indian child). By establishing ``minimum'' 
standards for removal and placement of Indian children, Congress made 
clear that it was not preempting the entire field of child-custody or 
adoption law as to Indian children, including all State laws that 
provide greater protection to such children than those established by 
ICWA. See e.g., H.R. Rep. No. 95-1386, at 19. ICWA specifically 
provides that, where State or Federal law provides a higher standard of 
protection to the rights of the parent or Indian custodian of an Indian 
child than the rights provided under ICWA, the State or Federal court 
shall apply the State or Federal standard.'' 25 U.S.C. 1921.
    Comment: A commenter suggested deleting ``in which ICWA applies'' 
from PR Sec.  23.105(a) because ICWA is applicable to all child-custody 
proceedings, so this phrase is redundant and adds confusion.
    Response: The final rule deletes the phrase ``and are applicable in 
all child-custody proceedings . . .'' because FR Sec.  23.103 addresses 
applicability.
    Comment: A few commenters stated that the new regulations conflict 
with various judicial decisions and asked whether the regulations will 
supersede existing case law.
    Response: The regulations are intended to provide a binding, 
consistent, nationwide interpretation of the minimum requirements of 
ICWA. If State law provides a higher standard of protection to the 
rights of the parent or Indian custodian of an Indian child than the 
rights provided under ICWA, as interpreted by this rule, State law will 
still apply. See 25 U.S.C. 1921.
3. Time Limits and Extensions
    Comment: One commenter stated that ICWA section 1912(a) allows ``up 
to 20 days'' whereas PR Sec.  23.111(c)(4)(v) adds a burden of stating 
a specific number of days, and the regulation should mirror the Act 
because it is difficult to obtain continuances.
    Response: FR Sec.  23.111(c)(4)(v) deletes the requirement to 
specify a number of days and now reflects the statutory language 
allowing ``up to 20 days.'' Other provisions also now reflect that the 
extension may be ``up to an additional 20 days.''
    Comment: One commenter suggested imposing timeframes on States for 
providing notice to Tribes.
    Response: To promote the statute's intent, FR Sec.  23.111(a) adds 
that the State must ``promptly'' provide notice to Tribes.
    Comment: A commenter suggested splitting PR Sec.  23.111(h), 
regarding time periods, into two subsections, one to address 
involuntary placements and one to address termination of parental 
responsibilities, and adding that findings and orders at involuntary 
placement proceedings are not binding on parties who did not receive 
notice but should have, and that courts will make diligent efforts to 
ensure timely notice.
    Response: The statute and regulation provide a mechanism for 
addressing instances where parties who did not receive notice but 
should have can seek to invalidate the action, by filing a petition 
under section 1914 of the Act. See FR Sec.  23.137.
    Comment: A few commenters suggested that timeframes longer than 
those set out in PR Sec.  23.112 are appropriate in Alaska, where a 
majority of villages are remote and subject to extreme weather 
conditions.
    Response: The timeframes in FR Sec.  23.112 are established by 
statute in section 1912(a). The minimum timeframes are to ensure that 
the parents or Indian custodians, and Indian child's Tribe have 
sufficient advance notice and time to prepare for a proceeding. State 
courts have discretion to allow for more time.
    Comment: A few commenters expressed their support for PR Sec.  
23.112's timeframes as key accountability mechanisms. One commenter 
stated that additional extensions of time should not be allowed in PR 
Sec.  23.112(a) unless it is for

[[Page 38852]]

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

[[Page 38853]]

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

[[Page 38854]]

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

V. Summary of Final Rule and Changes From Proposed Rule to Final Rule

    The following table summarizes changes made from the proposed rule 
to the final rule.

[[Page 38855]]



----------------------------------------------------------------------------------------------------------------
                                                                                         Summary of final rule
                                                             Summary of changes from    (as compared to rule in
           Proposed rule                  Final rule         proposed rule to final     effect before this final
                                                                      rule                       rule)
----------------------------------------------------------------------------------------------------------------
23.2 Definitions..................  23.2 Definitions.....  Added definitions for       Added definitions for
                                                            emergency proceeding,       active efforts,
                                                            hearing, Indian foster      continued custody,
                                                            home, involuntary           custody, domicile,
                                                            proceeding, proceeding,     emergency proceeding,
                                                            and voluntary proceeding.   hearing, Indian foster
                                                           Revised definitions of       home, involuntary
                                                            active efforts, child-      proceeding, proceeding,
                                                            custody proceeding,         status offenses, upon
                                                            continued custody,          demand, and voluntary
                                                            domicile, Indian child,     proceeding.
                                                            Indian child's Tribe,      Revised definitions of
                                                            Indian custodian, and       child-custody
                                                            upon demand.                proceeding, extended
                                                           Deleted definitions of       family member, Indian
                                                            imminent physical damage    child, Indian child's
                                                            or harm and voluntary       Tribe, Indian custodian,
                                                            placement.                  parent, reservation,
                                                                                        Secretary, and Tribal
                                                                                        court.
23.11 Notice......................  23.11 Notice.........  Revises current (a) to      Restates current 23.11,
                                                            delete requirement to       but deletes the
                                                            send a copy of the notice   requirement to send a
                                                            to BIA Central Office.      copy of the notice that
                                                            Clarifies that notice       goes to the BIA Regional
                                                            must include the            Director to the BIA
                                                            information specified in    Central Office, and
                                                            23.111. Clarifies that      replaces ``certified
                                                            certain BIA duties          mail'' with ``registered
                                                            remain. Replaces            or certified mail.''
                                                            ``certified mail'' with     Updates information on
                                                            ``registered or certified   where notice should be
                                                            mail.'' Specifies where     sent. Moves provisions
                                                            notice should be sent.      from Sec.   23.11(b),
                                                                                        (d), (e) to FR Sec.
                                                                                        23.111.
N/A...............................  23.71 Recordkeeping    Deletes provisions of       Revises current 23.71 to
                                     and information        current Sec.   23.71(a)     more closely match
                                     availability.          because duplicative of      section 1951(b) of the
                                                            Sec.   23.140. Moves        Act.
                                                            current Sec.   23.71(b)
                                                            to (a) as part of non-
                                                            material changes to
                                                            restructure the section
                                                           Revises 23.71(b) to more
                                                            closely match section
                                                            1951(b) of the Act.
                                                            Deletes reference to BIA
                                                            Tribal enrollment officer
                                                            because position no
                                                            longer exists.
23.101 What is the purpose of this  23.101 What is the     Deletes sentence on when    New section. Establishes
 subpart?                            purpose of this        the regulations apply       the purpose of the new
                                     subpart?               because FR Sec.   23.103    subpart.
                                                            addresses when ICWA
                                                            applies.
23.102 What terms do I need to      23.102 What terms do   Revises definition of       New section. Defines
 know?                               I need to know?        ``agency''.                 ``agency'' and ``Indian
                                                                                        organization'' for the
                                                                                        purposes of this subpart
                                                                                        only.
23.103 When does ICWA apply?        23.103 When does ICWA  Clarifies what types of     New section. Delineates
                                     apply?                 proceedings ICWA does and   when ICWA's requirements
                                                            does not apply to.          may apply and do not
                                                            Revises text addressing     apply.
                                                            ``existing Indian          Establishes that there is
                                                            family'' exception.         no exception to the
                                                           Moves provisions regarding   application of ICWA
                                                            the requirement to ask      based on certain
                                                            whether ICWA applies to     factors.
                                                            FR Sec.   23.107. Moves    Establishes that ICWA
                                                            provision requiring         continues to apply even
                                                            treatment of a child as     if the child reaches the
                                                            an Indian child pending     age of 18.
                                                            verification to Sec.
                                                            23.107.
                                                           Clarifies that if ICWA
                                                            applies at the
                                                            commencement of a
                                                            proceeding, it continues
                                                            to apply even if the
                                                            child reaches age 18.
N/A...............................  23.104 What            Adds a chart to clarify     New section. Delineates
                                     provisions of this     which type of proceeding    what type of proceeding
                                     subpart apply to       each rule provision         the sections of the
                                     each type of child-    applies to.                 subpart apply to.
                                     custody proceeding?
23.104 How do I contact a Tribe     23.105 How do I        No significant changes....  New section. Establishes
 under the regulations in this       contact a Tribe                                    how to contact a Tribe
 subpart?                            under the                                          to provide notice or
                                     regulations in this                                obtain information or
                                     subpart?                                           verification.
23.105 How does this subpart        23.106 How does this   Deletes provision           New section. Specifies
 interact with State laws?           subpart interact       regarding ICWA              that the regulations
                                     with State and         applicability because       provide minimum Federal
                                     Federal laws?          applicability is            standards, and that more
                                                            addressed in 23.103.        protective State or
                                                                                        Federal laws apply.
23.106 When does the requirement    N/A..................  Deletes section...........  N/A.
 for active efforts begin?

[[Page 38856]]

 
23.107 What actions must an agency  23.107 How should a    Limits provision to         New section. Establishes
 and State court undertake to        State court            standards applicable in     that State courts must
 determine whether a child is an     determine if there     State-court proceedings.    ask as a threshold
 Indian child?                       is a reason to know   Clarifies that inquiry is    question at the start of
                                     the child is an        required in emergency,      a proceeding whether
                                     Indian child?          involuntary, and            there is reason to know
                                                            voluntary proceedings.      the child is an Indian
                                                           Clarifies that if there is   child.
                                                            ``reason to know'' the     Establishes that, if
                                                            child is an Indian child,   there is reason to know
                                                            this triggers certain       the child is an Indian
                                                            obligations.                child, the State court
                                                           Deletes list of              must confirm the agency
                                                            information that the        used due diligence to
                                                            court may require the       identify and work with
                                                            agency to provide.          Tribes to obtain
                                                           Replaces ``active            verification, and must
                                                            efforts'' to identify       treat the child as an
                                                            Tribes with ``due           Indian child unless and
                                                            diligence'' to identify     until it is determined
                                                            Tribes. Moves provision     otherwise. Establishes
                                                            requiring treatment of      what factors indicate a
                                                            the child as an Indian      ``reason to know.''
                                                            child from proposed        Establishes that a court
                                                            23.103(d).                  and Tribe must keep
                                                           Adds to the list of          documents confidential
                                                            factors providing           if a consenting parent
                                                            ``reason to know'' the      requested anonymity in a
                                                            child is an ``Indian        voluntary proceeding.
                                                            child'' that the child is
                                                            or has been a ward of
                                                            Tribal court and that
                                                            either parent or child
                                                            possesses a Tribal
                                                            identification card, but
                                                            removes 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 the determination  23.108 Who makes the   Adds that a Tribal          New section. Establishes
 as to whether a child is a member   determination as to    determination of            that only the Tribe may
 of a Tribe?                         whether a child is a   membership or eligibility   make determinations as
                                     member, whether a      may be reflected in facts   to Tribal membership or
                                     child is eligible      of evidence, such as        eligibility, and that
                                     for membership, or     Tribal enrollment           such determinations may
                                     whether a biological   documentation.              be reflected in
                                     parent is a member                                 documentation issued by
                                     of a Tribe?                                        the Tribe.
23.109 What is the procedure for    23.109 How should a    Deletes provision           New section. Incorporates
 determining an Indian child's       State court            requiring notification by   statutory provisions for
 tribe when the child is a member    determine an Indian    agencies.                   establishing the child's
 or eligible for membership in       child's Tribe when    Clarifies process and        Tribe.
 more than one Tribe?                the child may be a     considerations where more  Establishes that
                                     member or eligible     than one Tribe is           deference must be given
                                     for membership in      involved.                   to Tribe in which the
                                     more than one Tribe?  Deletes requirement for      child is already a
                                                            notifying all other         member unless otherwise
                                                            Tribes that a particular    agreed to by the Tribes.
                                                            Tribe was designated as    Establishes that, where
                                                            the child's Tribe.          the child is a member in
                                                           Deletes statement that a     more than one Tribe or
                                                            Tribe can designate         eligible for membership
                                                            another Tribe to act as     in more than one Tribe,
                                                            its representative.         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
                                                                                        consider in determining
                                                                                        which has ``more
                                                                                        significant contacts''
                                                                                        if Tribes are unable to
                                                                                        reach an agreement.
23.110 When must a State court      23.110 When must a     Adds that the provision is  New section. Establishes
 dismiss an action?                  State court dismiss    subject to agreements       that a State court must
                                     an action?             between States and Tribes   determine its
                                                            pursuant to 25 U.S.C.       jurisdiction and when a
                                                            1919. Requires the Tribe    State court must dismiss
                                                            be expeditiously notified   an action
                                                            of the pending dismissal   Requires State court to
                                                            and sent information        ensure the Tribal court
                                                            regarding the child-        is expeditiously
                                                            custody proceeding.         notified and sent
                                                                                        information on the
                                                                                        proceeding.

[[Page 38857]]

 
23.111 What are the notice          23.111 What are the    Limited to standards to be  New section.
 requirements for a child-custody    notice requirements    applied in State-court     Establishes required
 proceeding involving an Indian      for a child-custody    proceedings.                contents of the notice.
 child?                              proceeding involving  Clarifies that provision    Allows notice to be sent
                                     an Indian child?       applies to involuntary      by certified or
                                                            foster-care-placement and   registered mail, as long
                                                            termination-of-parental-    as return receipt is
                                                            rights proceedings.         requested.
                                                           Adds ``certified mail'' as  Incorporates provisions
                                                            an option.                  of current 23.11.
                                                           Incorporates additional     Incorporates statutory
                                                            information from current    provision requiring
                                                            23.11 (e.g., maiden         court to inform a parent
                                                            names, requirement to       or Indian custodian who
                                                            keep confidential           appears in court without
                                                            information in the          an attorney of certain
                                                            notice).                    rights. Requires a State
                                                           Deletes provision stating    court to provide
                                                            that counsel is appointed   language-access services
                                                            only if authorized by       as required by Federal
                                                            State law.                  law.
                                                           Deletes provision
                                                            requiring a specific
                                                            amount of additional time
                                                            to be included in the
                                                            request.
                                                           Clarifies language-access
                                                            requirements. Removes
                                                            provision addressing
                                                            Interstate Compact on
                                                            Placement of Children.
                                                           Moves provision regarding
                                                            no rulings occurring
                                                            until the waiting period
                                                            has elapsed to 23.112(a).
23.112 What time limits and         23.112 What time       Reorganizes section.        New section. Incorporates
 extensions apply?                   limits and             States that no proceeding   statutory prohibition on
                                     extensions apply?      can be held until at        foster care or
                                                            least 10 days after the     termination-of-parental-
                                                            required notice is          rights proceedings being
                                                            provided. Clarifies that    held until certain
                                                            extensions may be ``up      timelines are passed.
                                                            to'' an additional 20
                                                            days.
                                                           Moves provision regarding
                                                            alternative methods of
                                                            participation to 23.133.
                                                           Clarifies that additional
                                                            extensions of time may be
                                                            granted.
23.113 What is the process for the  23.113 What are the    Adds that emergency         New section. Incorporates
 emergency removal of an Indian      standards for          removal/placement must      statutory limitations on
 child?                              emergency              terminate immediately       State emergency removals
                                     proceedings            when no longer necessary    and emergency
                                     involving an Indian    to prevent imminent         placements.
                                     child?                 physical damage or harm.   Establishes what a
                                                           Clarifies what standards     petition, or
                                                            state court should apply    accompanying documents,
                                                            in emergency proceedings    for emergency removal or
                                                            involving an Indian child.  emergency placement
                                                           Changes standard from        should include.
                                                            whether emergency removal/ Requires State court to
                                                            placement is ``proper''     determine at each
                                                            to whether it is            hearing whether the
                                                            ``necessary to prevent      emergency removal or
                                                            imminent physical damage    emergency placement is
                                                            or harm to the child.''.    no longer necessary.
                                                           Removes certain             Establishes a 30-day
                                                            requirements on the         deadline by which
                                                            agency.                     emergency removal and
                                                           Clarifies that agency may    emergency placement
                                                            terminate the emergency     should end unless the
                                                            removal/placement.          court determines that
                                                           Requires additional          restoring the child to
                                                            statements in the           the parent or Indian
                                                            petition or accompanying    custodian would subject
                                                            documents.                  the child to imminent
                                                           Replaces provision           physical damage or harm,
                                                            requiring a hearing if      and the court cannot
                                                            emergency removal/          transfer jurisdiction to
                                                            placement is continued      the Tribe, and that it
                                                            for more than 30 days       is not possible to
                                                            with a requirement for a    initiate a child-custody
                                                            court determination that    proceeding defined in
                                                            restoring the child to      Sec.   23.2.
                                                            the parent or Indian
                                                            custodian would subject
                                                            the child to imminent
                                                            physical 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
                                                            Sec.   23.2.
                                                           Moves provision regarding
                                                            alternative methods of
                                                            participation to Sec.
                                                            23.133.
23.114 What are the procedures for  23.114 What are the    Changes ``reason to         New section. Establishes
 determining improper removal?       requirements for       believe'' to ``reason to    that the State court
                                     determining improper   know'' of an improper       must expeditiously
                                     removal?               removal.                    determine whether there
                                                           Changes ``immediately stay   was an improper removal
                                                            the proceeding until a      or retention under
                                                            determination can be made   certain circumstances.
                                                            on the question of         Requires the child to be
                                                            improper removal'' to       returned immediately to
                                                            ``expeditiously determine   parents if there has
                                                            whether there was           been an improper removal
                                                            improper removal or         or retention, unless it
                                                            retention''.                would subject the child
                                                           Changes standard from        to substantial and
                                                            ``imminent physical         immediate danger or
                                                            damage or harm'' to         threat of such danger.
                                                            ``substantial and
                                                            immediate danger or
                                                            threat of such danger''.

[[Page 38858]]

 
23.115 How are petitions for        23.115 How are         Adds that a request for     New section. Establishes
 transfer of proceeding made?        petitions for          transfer may be made at     how petitions for
                                     transfer of a          any stage of each           transfer may be made.
                                     proceeding made?       proceeding.
                                                           Clarifies that provision
                                                            applies to foster-care
                                                            and termination-of-
                                                            parental-rights
                                                            proceedings.
23.116 What are the criteria and    23.117 What are the    Changes ``case'' to         New section. Establishes
 procedures for ruling on transfer   criteria for ruling    ``child-custody             that a State court must
 petitions?                          on transfer            proceeding''.               transfer a proceeding
                                     petitions?            Clarifies that a court       unless one or more of
                                                            must make a determination   the listed criteria are
                                                            when transfer is not        met.
                                                            appropriate.
                                                           Moves provision for court
                                                            to provide records
                                                            related to the proceeding
                                                            to Tribal court to Sec.
                                                            23.119.
23.117 How is a determination of    23.118 How is a        Clarifies that the court    New section. Prohibits
 ``good cause'' not to transfer      determination of       ``must not'' consider       State court from
 made?                               ``good cause'' to      certain factors, rather     considering certain
                                     deny transfer made?    than ``may not''.           factors in determining
                                                           Combines the two separate    whether good cause to
                                                            lists of factors that       deny transfer exists.
                                                            must not be considered
                                                            into one list.
                                                           Clarifies when court must   Requires the basis for
                                                            not consider whether the    denying transfer to be
                                                            proceeding is at an         stated on the record or
                                                            advanced stage.             in a written opinion.
                                                           Adds that the court must
                                                            not consider whether
                                                            there have been prior
                                                            proceedings involving 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
                                                            placement. 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 transfer to
                                                            be stated on the record
                                                            or in a written opinion.
23.118 What happens when a          23.116 What happens    Splits the proposed         New section. Establishes
 petition for transfer is made?      when a petition for    section into two            that the State court
                                     transfer is made?      sections. Deletes           must ensure the Tribal
                                    23.119 What happens     provision stating the       court is promptly
                                     after a petition for   notice should specify how   notified in writing of a
                                     transfer is granted?.  long the Tribal court has   transfer petition.
                                                            to make its decision and   New section. Establishes
                                                            requiring at least 20       that State court should
                                                            days for Tribal court to    expeditiously provide
                                                            decide.                     the Tribal court with
                                                           Adds that the State court    all records related to
                                                            ``may request a timely      the proceeding if the
                                                            response'' regarding        Tribal court accepts
                                                            whether the Tribe wishes    transfer, and should
                                                            to decline the transfer.    coordinate the transfer
                                                            Changes ``promptly          with the Tribal court.
                                                            provide the Tribal court
                                                            with all court records''
                                                            to ``expeditiously
                                                            provide the Tribal court
                                                            with all records related
                                                            to the proceeding.''.
                                                           Adds language regarding
                                                            coordination between
                                                            State and Tribal courts.
23.119 Who has access to reports    23.134 Who has access  Deletes provision stating   New section. Establishes
 or records?                         to reports or          that decisions of the       rights of parties to
                                     records during a       court must be based only    examine records of
                                     proceeding?            upon what is in the         proceedings.
                                                            record.
23.120 What steps must a party      23.120 How does the    Deletes provision directly  New section. Requires
 take to petition a State court      State court ensure     imposing requirements on    State court to conclude
 for certain actions involving an    that active efforts    any party petitioning for   that active efforts to
 Indian child?                       have been made?        foster care or              avoid the need to remove
                                                            termination of parental     the Indian child from
                                                            rights; instead requires    his or her parents or
                                                            the court to conclude       Indian custodian were
                                                            that active efforts have    made prior to ordering
                                                            been made.                  an involuntary foster-
                                                                                        care placement or
                                                                                        termination-of-parental-
                                                                                        rights.
                                                                                       Requires documentation of
                                                                                        active efforts.
23.121 What are the applicable      23.121 What are the    Clarifies that court        New section. Establishes
 standards of evidence?              applicable standards   ``must not issue an         standards of evidence in
                                     of evidence?           order'' absent the          foster-care placement
                                                            appropriate standard of     proceedings and
                                                            evidence, rather than       termination-of-parental-
                                                            ``may not issue an          rights proceedings.
                                                            order.''                   Requires the existence of
                                                           Changes standard from        a causal relationship
                                                            ``seriously physical        between the particular
                                                            damage or harm'' to         conditions in the home
                                                            ``serious emotional or      and risk of serious
                                                            physical damage.''.         emotional or physical
                                                           Clarifies that a causal      damage to the child.
                                                            relationship is required   Establishes that, without
                                                            for finding both clear      the causal relationship,
                                                            and convincing evidence     certain factors may not
                                                            and evidence beyond a       be the sole factor for
                                                            reasonable doubt..          meeting the standard of
                                                           States that none of the      evidence.
                                                            listed factors may be the
                                                            sole evidence without a
                                                            causal relationship for
                                                            both clear and convincing
                                                            evidence and evidence
                                                            beyond a reasonable
                                                            doubt..

[[Page 38859]]

 
23.122 Who may serve as a           23.122 Who may serve   Clarifies that expert       New section. Establishes
 qualified expert witness?           as a qualified         witness must be able to     that a qualified expert
                                     expert witness?        testify regarding whether   witness should have
                                                            the Indian child's          knowledge of the
                                                            continued custody by the    prevailing social and
                                                            parent or Indian            cultural standards of
                                                            custodian is likely to      the Indian child's
                                                            result in serious           Tribe.
                                                            emotional 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      Reserved for numbering
                                                            purposes.                   purposes.
23.123 What actions must an agency  23.124 What actions    Deletes requirements        New section. Requires
 and State court undertake in        must a State court     directed at agencies.       State courts to ask
 voluntary proceedings?              undertake in          Clarifies that courts must   whether the child is an
                                     voluntary              ensure the party seeking    ``Indian child'' in
                                     proceedings?           placement has taken all     voluntary proceedings.
                                                            reasonable steps to        Where there is reason to
                                                            verify the child's          know that the child is
                                                            status..                    an Indian child,
                                                           Adds that State courts       requires State courts to
                                                            must ensure that the        ensure the party seeking
                                                            placement complies 23.129-  placement has taken all
                                                            23.132.                     reasonable steps to
                                                                                        verify the child's
                                                                                        status. Requires State
                                                                                        courts to ensure that
                                                                                        the placement complies
                                                                                        23.129-23.132.
23.124 How is consent obtained?     23.125 How is consent  Clarifies that the consent  New section. Requires
                                     obtained?              must be made before a       consent to voluntary
                                                            judge, not necessarily in   termination of parental
                                                            court.                      rights, foster-care
                                                           Clarifies what the court     placement, or adoption
                                                            must explain to the         to be in writing and
                                                            parent/Indian custodian     recorded before a court
                                                            prior to accepting          of competent
                                                            consent, and separates      jurisdiction. Requires
                                                            out the limitations         court to explain the
                                                            applicable to each type     consequences of the
                                                            of proceeding.              consent in detail and
                                                           Clarifies that the court's   certify that terms and
                                                            explanation must be on      consequences were
                                                            the record and in English   explained in English or
                                                            (unless English is not      the language of the
                                                            the primary language of     parent or Indian
                                                            the parent/Indian           custodian.
                                                            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 information should the  23.126 What            Clarifies that the consent  New section. Establishes
 consent document contain?           information must the   document must contain the   required contents of
                                     consent document       identifying Tribal          consent document.
                                     contain?               enrollment number ``where
                                                            known'' rather than ``if
                                                            any.''
                                                           Adds that the parent or
                                                            Indian custodian's
                                                            identifying information
                                                            must be included, rather
                                                            than definitively
                                                            requiring their addresses.
23.126 How is withdrawal of         23.127 How is          Clarifies that a parent or  New section. Establishes
 consent achieved in a voluntary     withdrawal of          Indian custodian may        when and how consent of
 foster-care placement?              consent to a foster-   withdraw consent to         foster-care placement
                                     care placement         foster-care placement at    may be withdrawn.
                                     achieved?              any time.                  Establishes that the
                                                           Removes requirement for      child must be returned
                                                            the withdrawal to be        to the parent or Indian
                                                            filed in the same court     custodian as soon as
                                                            where the consent           practicable.
                                                            document was executed.
                                                           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 withdrawal of         23.128 How is          Separates out provisions    New section. Establishes
 consent to a voluntary adoption     withdrawal of          for withdrawing consent     when and how consent to
 achieved?                           consent to a           to a termination of         a termination of
                                     termination of         parental rights from        parental rights and an
                                     parental rights or     provisions for              adoption may be
                                     adoption achieved?     withdrawing consent to an   withdrawn.
                                                            adoption.                  Establishes that the
                                                           Adds that withdrawal may     child must be returned
                                                            be accomplished by          to the parent or Indian
                                                            testimony before the        custodian as soon as
                                                            court.                      practicable.
                                                           Adds that State law may
                                                            provide additional
                                                            methods of withdrawing.
                                                           Changes ``clerk of the
                                                            court'' to ``the court.''.

[[Page 38860]]

 
23.128 When do the placement        23.129 When do the     Deletes provisions          New section. Establishes
 preferences apply?                  placement              directed at agencies.       when placement
                                     preferences apply?    Clarifies that the Tribe's   preferences apply.
                                                            placement preferences may  Establishes that where a
                                                            apply.                      parent requests
                                                           Clarifies that the court     anonymity in a voluntary
                                                            must consider requests      proceeding, the court
                                                            for anonymity in            must give weight to this
                                                            voluntary proceedings.      request.
                                                           Moves provisions regarding  Establishes that the
                                                            documentation to 23.137     placement preferences
                                                            and 23.138.                 must be followed unless
                                                                                        a determination is made
                                                                                        on the record that good
                                                                                        cause exists not to
                                                                                        apply those preferences.
23.129 What placement preferences   23.130 What placement  Clarifies that the Tribe's  New section. Lists the
 apply in adoptive placements?       preferences apply in   placement preferences may   placement preferences in
                                     adoptive placements?   apply.                      adoptive placements.
                                                           Clarifies that the court    Establishes that the
                                                            ``must'' consider, where    Tribe may establish a
                                                            appropriate, the            different order of
                                                            preferences of the Indian   preference by
                                                            child or parent.            resolution.
23.130 What placement preferences   23.131 What placement  Clarifies that preferences  New section. Lists the
 apply in foster care or             preferences apply in   apply to changes in         placement preferences in
 preadoptive placements?             foster-care or         placements.                 foster- care and
                                     preadoptive           Adds that sibling            preadoptive placements.
                                     placements?            attachment as a            Establishes that the
                                                            consideration in whether    Tribe may establish a
                                                            the placement               different order of
                                                            approximates a family.      preference by
                                                           Clarifies that the Tribe's   resolution.
                                                            placement preferences may  Requires the court to
                                                            apply.                      consider the preference
                                                           Deletes the provision        of the Indian child or
                                                            ``whether on or off the     parent.
                                                            reservation'' as
                                                            superfluous.
                                                           Clarifies that the Tribe's
                                                            placement preferences
                                                            established by order or
                                                            resolution apply, so long
                                                            as the placement is the
                                                            least restricted setting
                                                            appropriate to the
                                                            particular needs of the
                                                            child.
                                                           Requires the court to
                                                            consider the preference
                                                            of the Indian child or
                                                            parent.
23.131 How is a determination for   23.132 How is a        Clarifies that the court    New section. Requires the
 ``good cause'' to depart from the   determination for      must ensure reasons for     court to ensure the
 placement preferences made?         ``good cause'' to      good cause are on the       reasons for good cause
                                     depart from the        record and available to     are on the record and
                                     placement              the parties.                available to parties.
                                     preferences made?     Clarifies that a            Establishes that the
                                                            determination of good       standard for proving
                                                            cause must be justified     good cause is clear and
                                                            on the record or in         convincing evidence.
                                                            writing.                   Requires the good cause
                                                           Changes the requirement      determination to be in
                                                            for the court to base       writing.
                                                            good cause on the listed   Establishes
                                                            considerations to a         considerations that the
                                                            statement that the court    good cause determination
                                                            ``should'' base good        should be based on.
                                                            cause on the listed        Prohibits court from
                                                            considerations.             departing from the
                                                           Clarifies that the request   preferences based solely
                                                            of one or both parents      on ordinary bonding or
                                                            may be a consideration      attachment that flowed
                                                            for good cause.             from time spent in a non-
                                                           Adds the presence of a       preferred placement that
                                                            sibling attachment as a     was made in violation of
                                                            consideration for good      ICWA.
                                                            cause.
                                                           Adds ``mental'' needs of
                                                            the child.
                                                           Deletes the provision
                                                            stating that
                                                            extraordinary needs does
                                                            not include ordinary
                                                            bonding and attachment.
                                                           Deletes requirement for
                                                            qualified expert witness.
                                                           Changes unavailability of
                                                            placements to
                                                            unavailability of
                                                            ``suitable'' placements,
                                                            and clarifies that a
                                                            placement may not be
                                                            considered
                                                            ``unavailable'' if it
                                                            conforms to prevailing
                                                            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 bonding 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  New section. Establishes
                                     allow participation    provisions previously at    that courts should
                                     by alternative         PR Sec.  Sec.   23.112,     allow, where they
                                     methods?               23.113, and 23.115.         possess the capability,
                                                                                        alternative methods of
                                                                                        participation in
                                                                                        proceedings.

[[Page 38861]]

 
23.132 What is the procedure for    23.136 What are the    Clarifies that this         New section. Establishes
 petitioning to vacate an            requirements for       provision addresses         the procedure for
 adoption?                           vacating an adoption   vacating an adoption        vacating an adoption
                                     based on consent       (deletes ``termination of   based on consent having
                                     having been obtained   parental rights'').         been obtained through
                                     through fraud or      Deletes provision allowing   fraud or duress.
                                     duress?                an adoption decree to be
                                                            vacated based on the
                                                            proceeding failing to
                                                            comply with ICWA.
23.133 Who can make a petition to   23.137 Who can make a  Clarifies which sections    New section. Establishes
 invalidate an action?               petition to            of ICWA violations of may   who can make a petition
                                     invalidate an action   justify a petition to       to invalidate an action
                                     for certain ICWA       invalidate an action.       based on a violation of
                                     violations?           Clarifies that an Indian     certain statutory
                                                            child that was, in the      provisions.
                                                            past, the subject of an
                                                            action for foster care or
                                                            termination of parental
                                                            rights may petition.
                                                           Moves provision regarding
                                                            alternative methods of
                                                            participation to Sec.
                                                            23.133.
23.134 What are the rights of       23.138 What are the    Narrows section to apply    New section. Establishes
 adult adoptees?                     rights to              only to rights to           how adult adoptees may
                                     information about      information about adult     receive information on
                                     adoptees' Tribal       adoptees' Tribal            Tribal affiliations.
                                     affiliations?          affiliations.
                                                           Deletes provision
                                                            regarding BIA helping
                                                            adoptee obtain
                                                            information because an
                                                            updated version of this
                                                            provision is at Sec.
                                                            23.71.
                                                           Deletes provision about
                                                            closed adoptions.
                                                           Deletes provision about
                                                            Tribes identifying a
                                                            Tribal designee to assist
                                                            adult adoptees.
23.135 When must notice of a        23.139 Must notice be  Clarifies that notice is    New section. Requires
 change in child's status be         given of a change in   required for Indian         notice to be given to
 given?                              an adopted Indian      children who have been      the child's biological
                                     child's status?        adopted.                    parents or prior Indian
                                                           Deletes provision            custodians and Tribe of
                                                            regarding change in         certain actions
                                                            placement.                  affecting an Indian
                                                           Adds that the notice must    child that has been
                                                            include the current name    adopted.
                                                            and any former names of    Establishes the required
                                                            the Indian child, and       content for the notice.
                                                            must include sufficient     Establishes provisions
                                                            information to allow the    allowing the parent or
                                                            recipient to participate    Indian custodian to
                                                            in any scheduled hearings.  waive notice.
                                                           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 receive notice does
                                                            not affect completed
                                                            proceedings.
23.136 What information must        23.140 What            Clarifies applicability to  Incorporates some of Sec.
 States furnish to the Bureau of     information must       voluntary and involuntary     23.71(a) regarding
 Indian Affairs?                     State courts furnish   adoptions.                  State requirement to
                                     to the Bureau of      Adds time period from        provide a copy of the
                                     Indian Affairs?        23.71 to provide that       adoptive placement
                                                            State court must provide    decree or order to BIA
                                                            a copy of the adoptive      within 30 days, along
                                                            decree or order within 30   with certain
                                                            days.                       information.
                                                           Adds requirement from
                                                            23.71 that the child's
                                                            birthdate must be
                                                            included in the
                                                            information State courts
                                                            provide to BIA.
                                                           Incorporates provisions
                                                            from 23.71(a) regarding
                                                            marking information
                                                            ``confidential'' and
                                                            regarding State agencies
                                                            assuming reporting
                                                            responsibilities.
23.137 How must the State maintain  23.141 What records    Deletes requirement for     New section. Requires
 records?                            must the State         State to establish a        States to maintain
                                     maintain?              single location to          records of all
                                                            maintain records.           placements made under
                                                           Increases the time in        the Act.
                                                            which the State must make  Establishes a minimum of
                                                            the record available to     what each record must
                                                            the Tribe or Secretary      include.
                                                            from 7 days to 14 days.
                                                           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 departs from
                                                            the placement preferences.
                                                           Clarifies that records may
                                                            be maintained by a State
                                                            court or State agency.
23.138 How does the Paperwork       23.139 How does the    Adds the OMB Control        New section. Addresses
 Reduction Act affect this           Paperwork Reduction    number.                     information collection
 subpart?                            Act affect this                                    requirements in the
                                     subpart.                                           subpart.

[[Page 38862]]

 
NA................................  23.143 How does this   ..........................  New section. States that
                                     subpart apply to                                   the provisions of the
                                     pending proceedings?                               rule will not affect a
                                                                                        child-custody proceeding
                                                                                        initiated prior to 180
                                                                                        days after publication
                                                                                        date of the rule.
NA................................  23.144 What happens    ..........................  New section. States that
                                     if some portion of                                 if any portion of the
                                     this part is held to                               rule is determined to be
                                     be invalid by a                                    invalid by a court, the
                                     court of competent                                 other portions of the
                                     jurisdiction?                                      rule remains in effect.
----------------------------------------------------------------------------------------------------------------

VI. Procedural Requirements

A. Regulatory Planning and Review (E.O. 12866 and 13563)

    Executive Order (E.O.) 12866 provides that the Office of 
Information and Regulatory Affairs (OIRA) at the Office of Management 
and Budget (OMB) will review all significant rules. OIRA has determined 
that this rule is not significant.
    E.O. 13563 reaffirms the principles of E.O. 12866 while calling for 
improvements in the nation's regulatory system to promote 
predictability, to reduce uncertainty, and to use the best, most 
innovative, and least burdensome tools for achieving regulatory ends. 
The E.O. directs agencies to consider regulatory approaches that reduce 
burdens and maintain flexibility and freedom of choice for the public 
where these approaches are relevant, feasible, and consistent with 
regulatory objectives. E.O. 13563 emphasizes further that regulations 
must be based on the best available science and that the rulemaking 
process must allow for public participation and an open exchange of 
ideas. The Department has developed this rule in a manner consistent 
with these requirements.

B. Regulatory Flexibility Act

    This rule will not have a significant economic effect on a 
substantial number of small entities under the Regulatory Flexibility 
Act (RFA) (5 U.S.C. 601 et seq.). The rule directly affects courts that 
hear Indian child welfare proceedings, and indirectly affects public 
child welfare agencies and private placement agencies. All of these 
categories of affected entities likely include entities that qualify as 
small entities, so the Department has estimated that rule affects 
approximately 7,625 small entities in these categories. Therefore, the 
Department has determined that this rule will have an impact on a 
substantial number of small entities. However, the Department has 
determined that the impact on entities affected by the rule will not be 
significant because of the total economic impact of this rule's 
requirements on any given entity is likely to be limited to an order of 
magnitude that is minimal in comparison to the entity's annual 
operating budget. The Department's detailed review of the potential 
economic effects resulting from new regulatory requirements is 
available upon request.

C. Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. The rule does not have an 
annual effect on the economy of $100 million or more. The rule's 
requirements will not result in a major increase in costs or prices for 
consumers, individual industries, Federal, State, or local government 
agencies, or geographic regions. As noted above, the rule's 
requirements on any given entity is a minimal order of magnitude 
compared to an entity's annual operating budget. In cases where that is 
not true, the entity (such as a private adoption agency) may choose to 
pass their costs on to parties seeking placement and, on an individual 
level, the incremental increase in costs is minimal. Nor will this rule 
have significant adverse effects on competition, employment, 
investment, productivity, innovation, or the ability of the U.S.-based 
enterprises to compete with foreign-based enterprises because the rule 
affects only placement of domestic children who qualify as an ``Indian 
child'' under the Act. The Department has reviewed the potential 
increase in costs resulting from new regulatory requirements, and this 
analysis is available upon request.

D. Unfunded Mandates Reform Act

    This rule does not impose an unfunded mandate on State, local, or 
Tribal governments or the private sector of more than $100 million per 
year. The rule does not have a significant or unique effect on State, 
local, or Tribal governments or the private sector. A statement 
containing the information required by the Unfunded Mandates Reform Act 
(2 U.S.C. 1531 et seq.) is not required.

E. Takings (E.O. 12630)

    Under the criteria in Executive Order 12630, this rule does not 
affect individual property rights protected by the Fifth Amendment nor 
does it involve a compensable ``taking.'' A takings implication 
assessment is therefore not required.

F. Federalism (E.O. 13132)

    Under the criteria in Executive Order 13132, this rule does not 
have sufficient Federalism implications to warrant preparation of a 
Federalism summary impact statement. The Department carefully reviewed 
comments regarding potential Federalism implications and determined 
that this rule complies with the fundamental Federalism principles and 
policymaking criteria established in EO 13132. Congress determined that 
the issue of Indian child welfare is sufficiently national in scope and 
significance to justify a statute that applies uniformly across States. 
This rule invokes the United States' special relationship with Indian 
Tribes and children by establishing a regulatory baseline for 
implementation to further the goals of ICWA. Such goals include 
protecting the best interests of Indian children and promoting the 
stability and security of Indian Tribes and families by establishing 
minimum Federal standards for the removal of Indian children from their 
families and the placement of such children in foster or adoptive homes 
that reflect the unique values of Indian culture. States are required 
to comply with ICWA even in the absence of this rule, and that 
requirement has existed since ICWA's passage in 1978.

G. Civil Justice Reform (E.O. 12988)

    This rule complies with the requirements of Executive Order 12988. 
Specifically, this rule meets the criteria

[[Page 38863]]

of section 3(a) requiring all regulations be reviewed to eliminate 
errors and ambiguity and be written to minimize litigation and meets 
the criteria of section 3(b)(2) requiring that all regulations be 
written in clear language and contain clear legal standards.

H. Consultation With Indian Tribes (E.O. 13175)

    The Department strives to strengthen its government-to-government 
relationship with Indian Tribes through a commitment to consultation 
with Indian Tribes and recognition of their right to self-governance 
and Tribal sovereignty. We have evaluated this rule under the 
Department's consultation policy and under the criteria in Executive 
Order 13175 and have identified substantial direct effects on federally 
recognized Indian Tribes that will result from this rule. This rule 
will affect Tribes by promoting implementation of a Federal statute 
intended to promote the stability and security of Indian Tribes and 
families. These regulations are the outcome of recommendations made by 
Tribes during several listening sessions on the ICWA guidelines. The 
Department hosted several formal Tribal consultation sessions on the 
proposed rule, including on April 20, 2015, in Portland, Oregon; April 
23, 2015, in Rapid City, South Dakota; May 5, 2015, in Albuquerque, New 
Mexico; May 7, 2015, in Prior Lake, Minnesota; May 11, 2015, by 
teleconference; and May 14, 2015, in Tulsa, Oklahoma. Many federally 
recognized Indian Tribes submitted written comments and nearly all, if 
not all, uniformly supported the regulations, though some had 
suggestions for improvements. The Department considered each Tribe's 
comments and their suggested improvements and has addressed them, where 
possible, in the final rule.

I. Paperwork Reduction Act

    This rule contains information collection requirements and a 
submission to OMB under the Paperwork Reduction Act (PRA) is required. 
The Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq., prohibits a 
Federal agency from conducting or sponsoring a collection of 
information that requires OMB approval, unless such approval has been 
obtained and the collection request displays a currently valid OMB 
control number. Nor is any person required to respond to an information 
collection request that has not complied with the PRA. OMB has approved 
the information collection for this rule and has assigned a control 
number:
    OMB Control Number: 1076-0186.
    Title: Indian Child Welfare Act (ICWA) Proceedings in State Court.
    Brief Description of Collection: This collection addresses the 
reporting, third-party disclosure, and recordkeeping requirements of 
ICWA, which requires State courts and agencies and private businesses 
to provide notice to or contact Tribes and parents/custodians of any 
child custody proceeding that may involve an ``Indian child,'' and 
requires State courts and agencies to document certain actions and 
maintain certain records regarding the removal and placement of an 
``Indian child.''
    Type of Review: Existing collection in use without OMB control 
number.
    Respondents: State and Tribal governments, businesses, and 
individuals.
    Number of Respondents: 6,906 on average (each year).
    Number of Responses: 98,069 on average (each year).
    Frequency of Response: On occasion.
    Estimated Time per Response: Ranges from 15 minutes to 12 hours.
    Estimated Total Annual Hour Burden: 301,811 hours.
    Estimated Total Annual Non-Hour 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                  50         260      13,000       12      156,000
                                        agency.                   whether child is ``Indian
                                                                  child''.
23.108, 23.109.......................  Tribe...................  Respond to State regarding            567          23      13,041        1       13,041
                                                                  Tribal membership.
23.110...............................  State court.............  Notify Tribal court of                 50           5         250        0.25        63
                                                                  dismissal and provide
                                                                  records.
23.11, 23.111........................  State court and/or        Notify Tribe, parents,                 50         273      13,650        6       81,900
                                        agency.                   Indian custodian of child
                                                                  custody proceeding.
23.11, 23.111........................  Private placement agency  Notify Tribe, parents,              1,289           2       2,578        6       15,468
                                                                  Indian custodian of child
                                                                  custody proceeding.
23.113...............................  State agency or State     Document basis for emergency           50         260      13,000        0.5      6,500
                                        court.                    removal/placement.
23.116, 23.119.......................  State court.............  Notify Tribal court of                 50           5         250        0.25        63
                                                                  transfer request, and
                                                                  provide records.
23.120...............................  Agency..................  Document ``active efforts''.           50         167       8,350        0.5      4,175
23.125, 23.126.......................  Parent/Indian custodian.  Consent to termination or           5,000           1       5,000        0.5      2,500
                                                                  adoption (with required
                                                                  contents).
23.127, 23.128.......................  State court.............  Notify placement of                    50           2         100        0.25        25
                                                                  withdrawal of consent.
23.136...............................  State court.............  Notify of petition to vacate           50           5         250        0.25        63
23.138...............................  State court.............  Inform adult adoptee of                50          20       1,000        0.5        500
                                                                  Tribal affiliation upon
                                                                  request.
23.139...............................  State court.............  Notify of change in status             50           4         200        0.25        63
                                                                  quo of adopted child.
23.140...............................  State court.............  Provide copy of final                  50          47       2,350        0.25       588
                                                                  adoption decree/order.
23.141...............................  State court.............  Maintain records of each               50         167       8,350        0.5      4,175
                                                                  placement (including
                                                                  required documents).
23.141...............................  State court or agency...  Provide placement records to           50         167       8,350        1.5     12,525
                                                                  Tribe or Secretary upon
                                                                  request within 14 days.

[[Page 38864]]

 
23.141...............................  State court or State      Notify where records                   50         167       8,350        0.5      4,175
                                        agency.                   maintained.
                                                                                              ----------------------------------------------------------
                                                                                               ...........  ..........      98,069  ..........   301,811
--------------------------------------------------------------------------------------------------------------------------------------------------------

    The annual cost burden to respondents associated with providing 
notice by certified mail is $6.74 and the cost of a return receipt 
green card is $2.80. For each Indian child-custody proceeding, at least 
two notices must be sent--one to the parent and one to the Tribe, 
totaling $19.08. At an annual estimated 13,000 child welfare 
proceedings that may involve an ``Indian child,'' where approximately 
650 of these include an interstate transfer (13,650), this totals: 
$260,442. In addition, there are approximately 2,578 voluntary 
proceedings for which parties may choose to provide notice, at a cost 
of $49,118. Together, the total cost burden is $309,630.
    Comment was taken on this information collection in the proposed 
rule, as part of the public notice and comment period proposed rule, in 
compliance with OMB regulations. One commenter, the California Health 
and Human Services Agency, Department of Social Services (CHHS) 
submitted comments specifically in response to the request for comments 
on the information collection burden.
     Comment on Proposed Sec.  23.111: The proposed rule states 
that notice must be by registered mail, whereas the current 23.11(a) 
allows for notice by certified mail. To require registered mail will 
increase costs that undermine noticing under ICWA. Response: The 
statute specifies ``registered mail with return receipt requested.'' 25 
U.S.C. 1912(a). In response to these comments, the Department examined 
whether certified mail with return receipt requested is allowable under 
the statute, and determined that it is because certified mail with 
return receipt requested better meets the goals of prompt, documented 
notice. The final rule allows for certified mail.
     Comment on Proposed Sec.  23.104, providing information on 
how to contact a Tribe: The rule should clarify BIA's obligation in 
gathering the information for the list of Tribe's designated agents and 
contact information because the current list is outdated, inefficient, 
and inconsistently maintained. The list is hampered by publication in 
the Federal Register and BIA should be required to publish updates on 
the Web. The list also no longer maintains the historical affiliations, 
which was helpful. Response: BIA is now publishing the list using 
historical affiliations, as requested, and making the list available on 
its Web site, where it can be updated more frequently. The rule does 
not address this because these are procedures internal to the BIA.
     Comment on Proposed Sec.  23.111(i), requiring notice by 
both States where child is transferred interstate: Requiring both the 
originating State court and receiving State court to provide notice is 
duplicative and burdensome because notice should only be required in 
the State where the actual court proceeding is pending. Another 
commenter stated that the provision appears to apply to transfers 
between Tribes and States, where notice is unnecessary. Response: The 
final rule deletes this provision.
     Comment on Proposed Sec.  23.134, requiring BIA to 
disclose information to adult adoptees: This section appears to be 
creating duplicative work of the BIA and States, because both sections 
require each to provide adult adoptees information for Tribal 
enrollment. Response: The Act imposes this responsibility on both BIA 
and the State. Section 1951(b) of the Act imposes the responsibility on 
BIA, which is in Sec.  23.71(b) of the final rule. Section 1917 of the 
Act imposes the responsibility on States, which is addressed at Sec.  
23.134 of the final rule.
     Comment on Proposed Sec.  23.137, requiring the State to 
establish a single location for placement records: This requirement 
would be an unfunded mandate with undue burden and would require 
relocating 1,145 files to a different location and require changes to 
existing recordkeeping systems. Another State agency commented that 
there is a significant fiscal and annual burden due to the staffing, 
costs for copying, packaging and transferring physical files to a 
different location. Response: The final rule deletes the provision 
requiring States to establish a single, central repository. The 
associated information collection request has also been deleted.
     Comment on Proposed Sec.  23.137, requiring providing 
records to the Department or Tribe upon request: The 15-minute burden 
estimate allocated to this task is too low. The time to copy, package 
and mail the documents will be no less than one hour, but more 
realistically two hours. Response: The final rule updates the burden 
estimates to reflect 1.5 hours.
    If you have comments on this information collection, please submit 
them to Elizabeth K. Appel, Office of Regulatory Affairs & 
Collaborative Action--Indian Affairs, U.S. Department of the Interior, 
1849 C Street NW., MS-3071, Washington, DC 20240, or by email to 
elizabeth.appel@bia.gov.

J. National Environmental Policy Act

    This rule does not constitute a major Federal action significantly 
affecting the quality of the human environment because it is of an 
administrative, technical, and procedural nature. See, 43 CFR 
46.210(i). No extraordinary circumstances exist that would require 
greater review under the National Environmental Policy Act.

K. Effects on the Energy Supply (E.O. 13211)

    This rule is not a significant energy action under the definition 
in Executive Order 13211. A Statement of Energy Effects is not 
required.

List of Subjects in 25 CFR Part 23

    Administrative practice and procedure, Child welfare, Indians, 
Reporting and recordkeeping requirements.

    For the reasons stated in the preamble, the Department of the 
Interior, Bureau of Indian Affairs, amends part 23 in Title 25 of the 
Code of Federal Regulations as follows:

PART 23--INDIAN CHILD WELFARE ACT

0
1. The authority citation for part 23 continues to read as follows: 5 
U.S.C. 301; 25 U.S.C. 2, 9, 1901-1952.


0
2. In Sec.  23.2:
0
a. Add a definition for ``active efforts'' in alphabetical order;
0
b. Revise the definition of ``child-custody proceeding'';
0
c. Add definitions for ``continued custody'', ``custody'', and 
``domicile'' in alphabetical order;

[[Page 38865]]

0
d. Add a definition for ``emergency proceeding'' in alphabetical order;
0
e. Revise the definition of ``extended family member'';
0
f. Add a definition for ``hearing'' in alphabetical order;
0
g. Revise the definitions of ``Indian child'', ``Indian child's 
Tribe'', and ``Indian custodian'';
0
h. Add a definition for ``Indian foster home'' in alphabetical order;
0
i. Add a definition of ``involuntary proceeding'' in alphabetical 
order;
0
j. Revise the definition of ``parent'';
0
k. Revise the definitions of ``reservation'' and ``Secretary'';
0
l. Add a definition for ``status offenses'' in alphabetical order;
0
m. Revise the definition of ``Tribal court''; and
0
n. Add definitions for ``upon demand'', and ``voluntary proceeding'' in 
alphabetical order.
    The additions and revisions read as follows:


Sec.  23.2  Definitions.

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

[[Page 38866]]

biological child of a member/citizen of an Indian Tribe.
    Indian child's Tribe means:
    (1) The Indian Tribe in which an Indian child is a member or 
eligible for membership; or
    (2) In the case of an Indian child who is a member of or eligible 
for membership in more than one Tribe, the Indian Tribe described in 
Sec.  23.109.
    Indian custodian means any Indian who has legal custody of an 
Indian child under applicable Tribal law or custom or under applicable 
State law, or to whom temporary physical care, custody, and control has 
been transferred by the parent of such child. An Indian may demonstrate 
that he or she is an Indian custodian by looking to Tribal law or 
Tribal custom or State law.
    Indian foster home means a foster home where one or more of the 
licensed or approved foster parents is an ``Indian'' as defined in 25 
U.S.C. 1903(3).
    Involuntary proceeding means a child-custody proceeding in which 
the parent does not consent of his or her free will to the foster-care, 
preadoptive, or adoptive placement or termination of parental rights or 
in which the parent consents to the foster-care, preadoptive, or 
adoptive placement under threat of removal of the child by a State 
court or agency.
* * * * *
    Parent or parents means any biological parent or parents of an 
Indian child, or any Indian who has lawfully adopted an Indian child, 
including adoptions under Tribal law or custom. It does not include an 
unwed biological father where paternity has not been acknowledged or 
established.
    Reservation means Indian country as defined in 18 U.S.C 1151 and 
any lands, not covered under that section, title to which is held by 
the United States in trust for the benefit of any Indian Tribe or 
individual or held by any Indian Tribe or individual subject to a 
restriction by the United States against alienation.
    Secretary means the Secretary of the Interior or the Secretary's 
authorized representative acting under delegated authority.
* * * * *
    Status offenses mean offenses that would not be considered criminal 
if committed by an adult; they are acts prohibited only because of a 
person's status as a minor (e.g., truancy, incorrigibility).
* * * * *
    Tribal court means a court with jurisdiction over child-custody 
proceedings and which is either a Court of Indian Offenses, a court 
established and operated under the code or custom of an Indian Tribe, 
or any other administrative body of a Tribe vested with authority over 
child-custody proceedings.
* * * * *
    Upon demand means that the parent or Indian custodian can regain 
custody simply upon verbal request, without any formalities or 
contingencies.
* * * * *
    Voluntary proceeding means a child-custody proceeding that is not 
an involuntary proceeding, such as a proceeding for foster-care, 
preadoptive, or adoptive placement that either parent, both parents, or 
the Indian custodian has, of his or her or their free will, without a 
threat of removal by a State agency, consented to for the Indian child, 
or a proceeding for voluntary termination of parental rights.

0
3. Revise Sec.  23.11 to read as follows:


Sec.  23.11  Notice.

    (a) In any involuntary proceeding in a State court where the court 
knows or has reason to know that an Indian child is involved, and where 
the identity and location of the child's parent or Indian custodian or 
Tribe is known, the party seeking the foster-care placement of, or 
termination of parental rights to, an Indian child must directly notify 
the parents, the Indian custodians, and the child's Tribe by registered 
or certified mail with return receipt requested, of the pending child-
custody proceedings and their right of intervention. Notice must 
include the requisite information identified in Sec.  23.111, 
consistent with the confidentiality requirement in Sec.  
23.111(d)(6)(ix). Copies of these notices must be sent to the 
appropriate Regional Director listed in paragraphs (b)(1) through (12) 
of this section by registered or certified mail with return receipt 
requested or by personal delivery and must include the information 
required by Sec.  23.111.
    (b)(1) For child-custody proceedings in Alabama, Connecticut, 
Delaware, District of Columbia, Florida, Georgia, Kentucky, Louisiana, 
Maine, Maryland, Massachusetts, Mississippi, New Hampshire, New Jersey, 
New York, North Carolina, Pennsylvania, Rhode Island, South Carolina, 
Tennessee, Vermont, Virginia, West Virginia, or any territory or 
possession of the United States, notices must be sent to the following 
address: Eastern Regional Director, Bureau of Indian Affairs, 545 
Marriott Drive, Suite 700, Nashville, Tennessee 37214.
    (2) For child-custody proceedings in Illinois, Indiana, Iowa, 
Michigan, Minnesota, Ohio, or Wisconsin, notices must be sent to the 
following address: Minneapolis Regional Director, Bureau of Indian 
Affairs, 331 Second Avenue South, Minneapolis, Minnesota 55401-2241.
    (3) For child-custody proceedings in Nebraska, North Dakota, or 
South Dakota, notices must be sent to the following address: Aberdeen 
Regional Director, Bureau of Indian Affairs, 115 Fourth Avenue SE., 
Aberdeen, South Dakota 57401.
    (4) For child-custody proceedings in Kansas, Texas (except for 
notices to the Ysleta del Sur Pueblo of El Paso County, Texas), or the 
western Oklahoma counties of Alfalfa, Beaver, Beckman, Blaine, Caddo, 
Canadian, Cimarron, Cleveland, Comanche, Cotton, Custer, Dewey, Ellis, 
Garfield, Grant, Greer, Harmon, Harper, Jackson, Kay, Kingfisher, 
Kiowa, Lincoln, Logan, Major, Noble, Oklahoma, Pawnee, Payne, 
Pottawatomie, Roger Mills, Texas, Tillman, Washita, Woods or Woodward, 
notices must be sent to the following address: Anadarko Regional 
Director, Bureau of Indian Affairs, P.O. Box 368, Anadarko, Oklahoma 
73005. Notices to the Ysleta del Sur Pueblo must be sent to the 
Albuquerque Regional Director at the address listed in paragraph (b)(6) 
of this section.
    (5) For child-custody proceedings in Wyoming or Montana (except for 
notices to the Confederated Salish and Kootenai Tribes of the Flathead 
Reservation, Montana), notices must be sent to the following address: 
Billings Regional Director, Bureau of Indian Affairs, 316 N. 26th 
Street, Billings, Montana 59101. Notices to the Confederated Salish and 
Kootenai Tribes of the Flathead Reservation, Montana, must be sent to 
the Portland Regional Director at the address listed in paragraph 
(b)(11) of this section.
    (6) For child-custody proceedings in the Texas counties of El Paso 
and Hudspeth or in Colorado or New Mexico (exclusive of notices to the 
Navajo Nation from the New Mexico counties listed in paragraph (b)(9) 
of this section), notices must be sent to the following address: 
Albuquerque Regional Director, Bureau of Indian Affairs, 615 First 
Street, P.O. Box 26567, Albuquerque, New Mexico 87125. Notices to the 
Navajo Nation must be sent to the Navajo Regional Director at the 
address listed in paragraph (b)(9) of this section.
    (7) For child-custody proceedings in Alaska (except for notices to 
the Metlakatla Indian Community, Annette Island Reserve, Alaska), 
notices must be sent to the following address: Juneau Regional 
Director, Bureau of Indian

[[Page 38867]]

Affairs, 709 West 9th Street, Juneau, Alaska 99802-1219. Notices to the 
Metlakatla Indian Community, Annette Island Reserve, Alaska, must be 
sent to the Portland Regional Director at the address listed in 
paragraph (b)(11) of this section.
    (8) For child-custody proceedings in Arkansas, Missouri, or the 
eastern Oklahoma counties of Adair, Atoka, Bryan, Carter, Cherokee, 
Craig, Creek, Choctaw, Coal, Delaware, Garvin, Grady, Haskell, Hughes, 
Jefferson, Johnson, Latimer, LeFlore, Love, Mayes, McCurtain, McClain, 
McIntosh, Murray, Muskogee, Nowata, Okfuskee, Okmulgee, Osage, Ottawa, 
Pittsburg, Pontotoc, Pushmataha, Marshall, Rogers, Seminole, Sequoyah, 
Stephens, Tulsa, Wagoner, or Washington, notices must be sent to the 
following address: Muskogee Regional Director, Bureau of Indian 
Affairs, 101 North Fifth Street, Muskogee, Oklahoma 74401.
    (9) For child-custody proceedings in the Arizona counties of 
Apache, Coconino (except for notices to the Hopi Tribe of Arizona and 
the San Juan Southern Paiute Tribe of Arizona) or Navajo (except for 
notices to the Hopi Tribe of Arizona); the New Mexico counties of 
McKinley (except for notices to the Zuni Tribe of the Zuni 
Reservation), San Juan, or Socorro; or the Utah county of San Juan, 
notices must be sent to the following address: Navajo Regional 
Director, Bureau of Indian Affairs, P.O. Box 1060, Gallup, New Mexico 
87301. Notices to the Hopi and San Juan Southern Paiute Tribes of 
Arizona must be sent to the Phoenix Regional Director at the address 
listed in paragraph (b)(10) of this section. Notices to the Zuni Tribe 
of the Zuni Reservation must be sent to the Albuquerque Regional 
Director at the address listed in paragraph (b)(6 of this section).
    (10) For child-custody proceedings in Arizona (exclusive of notices 
to the Navajo Nation from those counties listed in paragraph (b)(9) of 
this section), Nevada, or Utah (exclusive of San Juan County), notices 
must be sent to the following address: Phoenix Regional Director, 
Bureau of Indian Affairs, 1 North First Street, P.O. Box 10, Phoenix, 
Arizona 85001.
    (11) For child-custody proceedings in Idaho, Oregon, or Washington, 
notices must be sent to the following address: Portland Regional 
Director, Bureau of Indian Affairs, 911 NE 11th Avenue, Portland, 
Oregon 97232. All notices to the Confederated Salish and Kootenai 
Tribes of the Flathead Reservation, located in the Montana counties of 
Flathead, Lake, Missoula, and Sanders, must also be sent to the 
Portland Regional Director.
    (12) For child-custody proceedings in California or Hawaii, notices 
must be sent to the following address: Sacramento Regional Director, 
Bureau of Indian Affairs, Federal Office Building, 2800 Cottage Way, 
Sacramento, California 95825.
    (c) Upon receipt of the notice, the Secretary will make reasonable 
documented efforts to locate and notify the child's Tribe and the 
child's parent or Indian custodian. The Secretary will have 15 days, 
after receipt of the notice, to notify the child's Tribe and parents or 
Indian custodians and to send a copy of the notice to the court. If 
within the 15-day period the Secretary is unable to verify that the 
child meets the criteria of an Indian child as defined in Sec.  23.2, 
or is unable to locate the parents or Indian custodians, the Secretary 
will so inform the court and state how much more time, if any, will be 
needed to complete the verification or the search. The Secretary will 
complete all research efforts, even if those efforts cannot be 
completed before the child-custody proceeding begins.
    (d) Upon request from a party to an Indian child-custody 
proceeding, the Secretary will make a reasonable attempt to identify 
and locate the child's Tribe, parents, or Indian custodians to assist 
the party seeking the information.

0
4. Revise Sec.  23.71 to read as follows:


Sec.  23.71  Recordkeeping and information availability.

    (a) The Division of Human Services, Bureau of Indian Affairs (BIA), 
is authorized to receive all information and to maintain a central file 
on all State Indian adoptions. This file is confidential and only 
designated persons may have access to it.
    (b) Upon the request of an adopted Indian who has reached age 18, 
the adoptive or foster parents of an Indian child, or an Indian Tribe, 
BIA will disclose such information as may be necessary for purposes of 
Tribal enrollment or determining any rights or benefits associated with 
Tribal membership. Where the documents relating to such child contain 
an affidavit from the biological parent or parents requesting 
anonymity, BIA must certify to the Indian child's Tribe, where the 
information warrants, that the child's parentage and other 
circumstances entitle the child to enrollment under the criteria 
established by such Tribe.
    (c) BIA will ensure that the confidentiality of this information is 
maintained and that the information is not subject to the Freedom of 
Information Act, 5 U.S.C. 552, as amended.

0
5. Add subpart I to read as follows:
Subpart I--Indian Child Welfare Act Proceedings

General Provisions

Sec.
23.101 What is the purpose of this subpart?
23.102 What terms do I need to know?
23.103 When does ICWA apply?
23.104 What provisions of this subpart apply to each type of child-
custody proceeding?
23.105 How do I contact a Tribe under the regulations in this 
subpart?
23.106 How does this subpart interact with State and Federal laws?

Pretrial Requirements

23.107 How should a State court determine if there is reason to know 
the child is an Indian child?
23.108 Who makes the determination as to whether a child is a 
member, whether a child is eligible 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 member or eligible for membership in more 
than one Tribe?
23.110 When must a State court dismiss an action?
23.111 What are the notice requirements for a child-custody 
proceeding involving an Indian child?
23.112 What time limits and extensions apply?
23.113 What are the standards for emergency proceedings involving an 
Indian child?
23.114 What are the requirements for determining improper removal?

Petitions To Transfer to Tribal Court

23.115 How are petitions for transfer of a proceeding made?
23.116 What happens after a petition for transfer is made?
23.117 What are the criteria for ruling on transfer petitions?
23.118 How is a determination of ``good cause'' to deny transfer 
made?
23.119 What happens after a petition for transfer is granted?

Adjudication of Involuntary Proceedings

23.120 How does the State court ensure that active efforts have been 
made?
23.121 What are the applicable standards of evidence?
23.122 Who may serve as a qualified expert witness?
23.123 [Reserved]

Voluntary Proceedings

23.124 What actions must a State court undertake in voluntary 
proceedings?
23.125 How is consent obtained?
23.126 What information must a consent document contain?
23.127 How is withdrawal of consent to a foster-care placement 
achieved?

[[Page 38868]]

23.128 How is withdrawal of consent to a termination of parental 
rights or adoption achieved?

Dispositions

23.129 When do the placement preferences apply?
23.130 What placement preferences apply in adoptive placements?
23.131 What placement preferences apply in foster-care or 
preadoptive placements?
23.132 How is a determination of ``good cause'' to depart from the 
placement preferences made?

Access

23.133 Should courts allow participation by alternative methods?
23.134 Who has access to reports and records during a proceeding?
23.135 [Reserved]

Post-Trial Rights & Responsibilities

23.136 What are the requirements for vacating an adoption based on 
consent having been obtained through fraud or duress?
23.137 Who can petition to invalidate an action for certain ICWA 
violations?
23.138 What are the rights to information about adoptees' Tribal 
affiliations?
23.139 Must notice be given of a change in an adopted Indian child's 
status?

Recordkeeping

23.140 What information must States furnish to the Bureau of Indian 
Affairs?
23.141 What records must the State maintain?
23.142 How does the Paperwork Reduction Act affect this subpart?

Effective Date

23.143 How does this subpart apply to pending proceedings?

Severability

23.144 What happens if some portion of this part is held to be 
invalid by a court of competent jurisdiction?

Subpart I--Indian Child Welfare Act Proceedings

General Provisions


Sec.  23.101  What is the purpose of this subpart?

    The regulations in this subpart clarify the minimum Federal 
standards governing implementation of the Indian Child Welfare Act 
(ICWA) to ensure that ICWA is applied in all States consistent with the 
Act's express language, Congress's intent in enacting the statute, and 
to promote the stability and security of Indian tribes and families.


Sec.  23.102  What terms do I need to know?

    The following terms and their definitions apply to this subpart. 
All other terms have the meanings assigned in Sec.  23.2.
    Agency means a nonprofit, for-profit, or governmental organization 
and its employees, agents, or officials that performs, or provides 
services to biological parents, foster parents, or adoptive parents to 
assist in the administrative and social work necessary for foster, 
preadoptive, or adoptive placements.
    Indian organization means any group, association, partnership, 
corporation, or other legal entity owned or controlled by Indians or a 
Tribe, or a majority of whose members are Indians.


Sec.  23.103  When does ICWA apply?

    (a) ICWA includes requirements that apply whenever an Indian child 
is the subject of:
    (1) A child-custody proceeding, including:
    (i) An involuntary proceeding;
    (ii) A voluntary proceeding that could prohibit the parent or 
Indian custodian from regaining custody of the child upon demand; and
    (iii) A proceeding involving status offenses if any part of the 
proceeding results in the need for out-of-home placement of the child, 
including a foster-care, preadoptive, or adoptive placement, or 
termination of parental rights.
    (2) An emergency proceeding.
    (b) ICWA does not apply to:
    (1) A Tribal court proceeding;
    (2) A proceeding regarding a criminal act that is not a status 
offense;
    (3) An award of custody of the Indian child to one of the parents 
including, but not limited to, an award in a divorce proceeding; or
    (4) A voluntary placement that either parent, both parents, or the 
Indian custodian has, of his or her or their free will, without a 
threat of removal by a State agency, chosen for the Indian child and 
that does not operate to prohibit the child's parent or Indian 
custodian from regaining custody of the child upon demand.
    (c) If a proceeding listed in paragraph (a) of this section 
concerns a child who meets the statutory definition of ``Indian 
child,'' then ICWA will apply to that proceeding. In determining 
whether ICWA applies to a proceeding, the State court may not consider 
factors such as the participation of the parents or the Indian child in 
Tribal cultural, social, religious, or political activities, the 
relationship between the Indian child and his or her parents, whether 
the parent ever had custody of the child, or the Indian child's blood 
quantum.
    (d) If ICWA applies at the commencement of a proceeding, it will 
not cease to apply simply because the child reaches age 18 during the 
pendency of the proceeding.


Sec.  23.104  What provisions of this subpart apply to each type of 
child-custody proceeding?

    The following table lists what sections of this subpart apply to 
each type of child-custody proceeding identified in Sec.  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  Emergency, Involuntary,
 there is reason to know the child is an        Voluntary.
 Indian child?).
23.108 (Who makes the determination as to      Emergency, Involuntary,
 whether a child is a member whether a child    Voluntary.
 is eligible for membership, or whether a
 biological parent is a member of a Tribe?).
23.109 (How should a State court determine an  Emergency, Involuntary,
 Indian child's Tribe when the child may be a   Voluntary.
 member or eligible for membership in more
 than one Tribe?).
23.110 (When must a State court dismiss an     Involuntary, Voluntary.
 action?).
23.111 (What are the notice requirements for   Involuntary (foster-care
 a child-custody proceeding involving an        placement and
 Indian child?).                                termination of parental
                                                rights).
23.112 (What time limits and extensions        Involuntary (foster-care
 apply?).                                       placement and
                                                termination of parental
                                                rights).
23.113 (What are the standards for emergency   Emergency.
 proceedings involving an Indian child?).
23.114 (What are the requirements for          Involuntary.
 determining improper removal?).
Petitions to Transfer to Tribal Court:
23.115 (How are petitions for transfer of a    Involuntary, Voluntary
 proceeding made?).                             (foster-care placement
                                                and termination of
                                                parental rights).

[[Page 38869]]

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

Sec.  23.105  How do I contact a Tribe under the regulations in this 
subpart?

    To contact a Tribe to provide notice or obtain information or 
verification under the regulations in this subpart, you should direct 
the notice or inquiry as follows:
    (a) Many Tribes designate an agent for receipt of ICWA notices. The 
BIA publishes a list of Tribes' designated Tribal agents for service of 
ICWA notice in the Federal Register each year and makes the list 
available on its Web site at www.bia.gov.
    (b) For a Tribe without a designated Tribal agent for service of 
ICWA notice, contact the Tribe to be directed to the appropriate office 
or individual.
    (c) If you do not have accurate contact information for a Tribe, or 
the Tribe contacted fails to respond to written inquiries, you should 
seek assistance in contacting the Indian Tribe from the BIA local or 
regional office or the BIA's Central Office in Washington, DC (see 
www.bia.gov).


Sec.  23.106  How does this subpart interact with State and Federal 
laws?

    (a) The regulations in this subpart provide minimum Federal 
standards to ensure compliance with ICWA.
    (b) Under section 1921 of ICWA, where applicable State or other 
Federal law provides a higher standard of protection to the rights of 
the parent or Indian custodian than the protection accorded under the 
Act, ICWA requires the State or Federal court to apply the higher State 
or Federal standard.

Pretrial Requirements


Sec.  23.107  How should a State court determine if there is reason to 
know the child is an Indian child?

    (a) State courts must ask each participant in an emergency or 
voluntary or involuntary child-custody proceeding whether the 
participant knows or has reason to know that the child is an Indian 
child. The inquiry is made at the commencement of the proceeding and 
all responses should be on the record. State courts must instruct the 
parties to inform the court if they subsequently receive information 
that provides reason to know the child is an Indian child.
    (b) If there is reason to know the child is an Indian child, but 
the court does

[[Page 38870]]

not have sufficient evidence to determine that the child is or is not 
an ``Indian child,'' the court must:
    (1) Confirm, by way of a report, declaration, or testimony included 
in the record that the agency or other party used due diligence to 
identify and work with all of the Tribes of which there is reason to 
know the child may be a member (or eligible for membership), to verify 
whether the child is in fact a member (or a biological parent is a 
member and the child is eligible for membership); and
    (2) Treat the child as an Indian child, unless and until it is 
determined on the record that the child does not meet the definition of 
an ``Indian child'' in this part.
    (c) A court, upon conducting the inquiry required in paragraph (a) 
of this section, has reason to know that a child involved in an 
emergency or child-custody proceeding is an Indian child if:
    (1) Any participant in the proceeding, officer of the court 
involved in the proceeding, Indian Tribe, Indian organization, or 
agency informs the court that the child is an Indian child;
    (2) Any participant in the proceeding, officer of the court 
involved in the proceeding, Indian Tribe, Indian organization, or 
agency informs the court that it has discovered information indicating 
that the child is an Indian child;
    (3) The child who is the subject of the proceeding gives the court 
reason to know he or she is an Indian child;
    (4) The court is informed that the domicile or residence of the 
child, the child's parent, or the child's Indian custodian is on a 
reservation or in an Alaska Native village;
    (5) The court is informed that the child is or has been a ward of a 
Tribal court; or
    (6) The court is informed that either parent or the child possesses 
an identification card indicating membership in an Indian Tribe.
    (d) In seeking verification of the child's status in a voluntary 
proceeding where a consenting parent evidences, by written request or 
statement in the record, a desire for anonymity, the court must keep 
relevant documents pertaining to the inquiry required under this 
section confidential and under seal. A request for anonymity does not 
relieve the court, agency, or other party from any duty of compliance 
with ICWA, including the obligation to verify whether the child is an 
``Indian child.'' A Tribe receiving information related to this inquiry 
must keep documents and information confidential.


Sec.  23.108  Who makes the determination as to whether a child is a 
member, whether a child is eligible for membership, or whether a 
biological parent is a member of a Tribe?

    (a) The Indian Tribe of which it is believed the child is a member 
(or eligible for membership and of which the biological parent is a 
member) determines whether the child is a member of the Tribe, or 
whether the child is eligible for membership in the Tribe and a 
biological parent of the child is a member of the Tribe, except as 
otherwise provided by Federal or Tribal law.
    (b) The determination by a Tribe of whether a child is a member, 
whether a child is eligible for membership, or whether a biological 
parent is a member, is solely within the jurisdiction and authority of 
the Tribe, except as otherwise provided by Federal or Tribal law. The 
State court may not substitute its own determination regarding a 
child's membership in a Tribe, a child's eligibility for membership in 
a Tribe, or a parent's membership in a Tribe.
    (c) The State court may rely on facts or documentation indicating a 
Tribal determination of membership or eligibility for membership in 
making a judicial determination as to whether the child is an ``Indian 
child.'' An example of documentation indicating membership is a 
document issued by the Tribe, such as Tribal enrollment documentation.


Sec.  23.109  How should a State court determine an Indian child's 
Tribe when the child may be a member or eligible for membership in more 
than one Tribe?

    (a) If the Indian child is a member or eligible for membership in 
only one Tribe, that Tribe must be designated as the Indian child's 
Tribe.
    (b) If the Indian child meets the definition of ``Indian child'' 
through more than one Tribe, deference should be given to the Tribe in 
which the Indian child is already a member, unless otherwise agreed to 
by the Tribes.
    (c) If an Indian child meets the definition of ``Indian child'' 
through more than one Tribe because the child is a member in more than 
one Tribe or the child is not a member of but is eligible for 
membership in more than one Tribe, the court must provide the 
opportunity in any involuntary child-custody proceeding for the Tribes 
to determine which should be designated as the Indian child's Tribe.
    (1) If the Tribes are able to reach an agreement, the agreed-upon 
Tribe should be designated as the Indian child's Tribe.
    (2) If the Tribes are unable to reach an agreement, the State court 
designates, for the purposes of ICWA, the Indian Tribe with which the 
Indian child has the more significant contacts as the Indian child's 
Tribe, taking into consideration:
    (i) Preference of the parents for membership of the child;
    (ii) Length of past domicile or residence on or near the 
reservation of each Tribe;
    (iii) Tribal membership of the child's custodial parent or Indian 
custodian; and
    (iv) Interest asserted by each Tribe in the child-custody 
proceeding;
    (v) Whether there has been a previous adjudication with respect to 
the child by a court of one of the Tribes; and
    (vi) Self-identification by the child, if the child is of 
sufficient age and capacity to meaningfully self-identify.
    (3) A determination of the Indian child's Tribe for purposes of 
ICWA and the regulations in this subpart do not constitute a 
determination for any other purpose.


Sec.  23.110  When must a State court dismiss an action?

    Subject to 25 U.S.C. 1919 (Agreements between States and Indian 
Tribes) and Sec.  23.113 (emergency proceedings), the following 
limitations on a State court's jurisdiction apply:
    (a) The court in any voluntary or involuntary child-custody 
proceeding involving an Indian child must determine the residence and 
domicile of the Indian child. If either the residence or domicile is on 
a reservation where the Tribe exercises exclusive jurisdiction over 
child-custody proceedings, the State court must expeditiously notify 
the Tribal court of the pending dismissal based on the Tribe's 
exclusive jurisdiction, dismiss the State-court child-custody 
proceeding, and ensure that the Tribal court is sent all information 
regarding the Indian child-custody proceeding, including, but not 
limited to, the pleadings and any court record.
    (b) If the child is a ward of a Tribal court, the State court must 
expeditiously notify the Tribal court of the pending dismissal, dismiss 
the State-court child-custody proceeding, and ensure that the Tribal 
court is sent all information regarding the Indian child-custody 
proceeding, including, but not limited to, the pleadings and any court 
record.


Sec.  23.111  What are the notice requirements for a child-custody 
proceeding involving an Indian child?

    (a) When a court knows or has reason to know that the subject of an 
involuntary foster-care-placement or

[[Page 38871]]

termination-of-parental-rights proceeding is an Indian child, the court 
must ensure that:
    (1) The party seeking placement promptly sends notice of each such 
child-custody proceeding (including, but not limited to, any foster-
care placement or any termination of parental or custodial rights) in 
accordance with this section; and
    (2) An original or a copy of each notice sent under this section is 
filed with the court together with any return receipts or other proof 
of service.
    (b) Notice must be sent to:
    (1) Each Tribe where the child may be a member (or eligible for 
membership if a biological parent is a member) (see Sec.  23.105 for 
information on how to contact a Tribe);
    (2) The child's parents; and
    (3) If applicable, the child's Indian custodian.
    (c) Notice must be sent by registered or certified mail with return 
receipt requested. Notice may also be sent via personal service or 
electronically, but such alternative methods do not replace the 
requirement for notice to be sent by registered or certified mail with 
return receipt requested.
    (d) Notice must be in clear and understandable language and include 
the following:
    (1) The child's name, birthdate, and birthplace;
    (2) All names known (including maiden, married, and former names or 
aliases) of the parents, the parents' birthdates and birthplaces, and 
Tribal enrollment numbers if known;
    (3) If known, the names, birthdates, birthplaces, and Tribal 
enrollment information of other direct lineal ancestors of the child, 
such as grandparents;
    (4) The name of each Indian Tribe in which the child is a member 
(or may be eligible for membership if a biological parent is a member);
    (5) A copy of the petition, complaint, or other document by which 
the child-custody proceeding was initiated and, if a hearing has been 
scheduled, information on the date, time, and location of the hearing;
    (6) Statements setting out:
    (i) The name of the petitioner and the name and address of 
petitioner's attorney;
    (ii) The right of any parent or Indian custodian of the child, if 
not already a party to the child-custody proceeding, to intervene in 
the proceedings.
    (iii) The Indian Tribe's right to intervene at any time in a State-
court proceeding for the foster-care placement of or termination of 
parental rights to an Indian child.
    (iv) That, if the child's parent or Indian custodian is unable to 
afford counsel based on a determination of indigency by the court, the 
parent or Indian custodian has the right to court-appointed counsel.
    (v) The right to be granted, upon request, up to 20 additional days 
to prepare for the child-custody proceedings.
    (vi) The right of the parent or Indian custodian and the Indian 
child's Tribe to petition the court for transfer of the foster-care-
placement or termination-of-parental-rights proceeding to Tribal court 
as provided by 25 U.S.C. 1911 and Sec.  23.115.
    (vii) The mailing addresses and telephone numbers of the court and 
information related to all parties to the child-custody proceeding and 
individuals notified under this section.
    (viii) The potential legal consequences of the child-custody 
proceedings on the future parental and custodial rights of the parent 
or Indian custodian.
    (ix) That all parties notified must keep confidential the 
information contained in the notice and the notice should not be 
handled by anyone not needing the information to exercise rights under 
ICWA.
    (e) If the identity or location of the child's parents, the child's 
Indian custodian, or the Tribes in which the Indian child is a member 
or eligible for membership cannot be ascertained, but there is reason 
to know the child is an Indian child, notice of the child-custody 
proceeding must be sent to the appropriate Bureau of Indian Affairs 
Regional Director (see www.bia.gov). To establish Tribal identity, as 
much information as is known regarding the child's direct lineal 
ancestors should be provided. The Bureau of Indian Affairs will not 
make a determination of Tribal membership but may, in some instances, 
be able to identify Tribes to contact.
    (f) If there is a reason to know that a parent or Indian custodian 
possesses limited English proficiency and is therefore not likely to 
understand the contents of the notice, the court must provide language 
access services as required by Title VI of the Civil Rights Act and 
other Federal laws. To secure such translation or interpretation 
support, a court may contact or direct a party to contact the Indian 
child's Tribe or the local BIA office for assistance in locating and 
obtaining the name of a qualified translator or interpreter.
    (g) If a parent or Indian custodian of an Indian child appears in 
court without an attorney, the court must inform him or her of his or 
her rights, including any applicable right to appointed counsel, right 
to request that the child-custody proceeding be transferred to Tribal 
court, right to object to such transfer, right to request additional 
time to prepare for the child-custody proceeding as provided in Sec.  
23.112, and right (if the parent or Indian custodian is not already a 
party) to intervene in the child-custody proceedings.


Sec.  23.112  What time limits and extensions apply?

    (a) No foster-care-placement or termination-of-parental-rights 
proceeding may be held until at least 10 days after receipt of the 
notice by the parent (or Indian custodian) and by the Tribe (or the 
Secretary). The parent, Indian custodian, and Tribe each have a right, 
upon request, to be granted up to 20 additional days from the date upon 
which notice was received to prepare for participation in the 
proceeding.
    (b) Except as provided in 25 U.S.C. 1922 and Sec.  23.113, no 
child-custody proceeding for foster-care placement or termination of 
parental rights may be held until the waiting periods to which the 
parents or Indian custodians and to which the Indian child's Tribe are 
entitled have expired, as follows:
    (1) 10 days after each parent or Indian custodian (or Secretary 
where the parent or Indian custodian is unknown to the petitioner) has 
received notice of that particular child-custody proceeding in 
accordance with 25 U.S.C. 1912(a) and Sec.  23.111;
    (2) 10 days after the Indian child's Tribe (or the Secretary if the 
Indian child's Tribe is unknown to the party seeking placement) has 
received notice of that particular child-custody proceeding in 
accordance with 25 U.S.C. 1912(a) and Sec.  23.111;
    (3) Up to 30 days after the parent or Indian custodian has received 
notice of that particular child-custody proceeding in accordance with 
25 U.S.C. 1912(a) and Sec.  23.111, if the parent or Indian custodian 
has requested up to 20 additional days to prepare for the child-custody 
proceeding as provided in 25 U.S.C. 1912(a) and Sec.  23.111; and
    (4) Up to 30 days after the Indian child's Tribe has received 
notice of that particular child-custody proceeding in accordance with 
25 U.S.C. 1912(a) and Sec.  23.111, if the Indian child's Tribe has 
requested up to 20 additional days to prepare for the child-custody 
proceeding.
    (c) Additional time beyond the minimum required by 25 U.S.C. 1912 
and Sec.  23.111 may also be available under State law or pursuant to 
extensions granted by the court.

[[Page 38872]]

Sec.  23.113  What are the standards for emergency proceedings 
involving an Indian child?

    (a) Any emergency removal or placement of an Indian child under 
State law must terminate immediately when the removal or placement is 
no longer necessary to prevent imminent physical damage or harm to the 
child.
    (b) The State court must:
    (1) Make a finding on the record that the emergency removal or 
placement is necessary to prevent imminent physical damage or harm to 
the child;
    (2) Promptly hold a hearing on whether the emergency removal or 
placement continues to be necessary whenever new information indicates 
that the emergency situation has ended; and
    (3) At any court hearing during the emergency proceeding, determine 
whether the emergency removal or placement is no longer necessary to 
prevent imminent physical damage or harm to the child.
    (4) Immediately terminate (or ensure that the agency immediately 
terminates) the emergency proceeding once the court or agency possesses 
sufficient evidence to determine that the emergency removal or 
placement is no longer necessary to prevent imminent physical damage or 
harm to the child.
    (c) An emergency proceeding can be terminated by one or more of the 
following actions:
    (1) Initiation of a child-custody proceeding subject to the 
provisions of ICWA;
    (2) Transfer of the child to the jurisdiction of the appropriate 
Indian Tribe; or
    (3) Restoring the child to the parent or Indian custodian.
    (d) A petition for a court order authorizing the emergency removal 
or continued emergency placement, or its accompanying documents, should 
contain a statement of the risk of imminent physical damage or harm to 
the Indian child and any evidence that the emergency removal or 
placement continues to be necessary to prevent such imminent physical 
damage or harm to the child. The petition or its accompanying documents 
should also contain the following information:
    (1) The name, age, and last known address of the Indian child;
    (2) The name and address of the child's parents and Indian 
custodians, if any;
    (3) The steps taken to provide notice to the child's parents, 
custodians, and Tribe about the emergency proceeding;
    (4) If the child's parents and Indian custodians are unknown, a 
detailed explanation of what efforts have been made to locate and 
contact them, including contact with the appropriate BIA Regional 
Director (see www.bia.gov);
    (5) The residence and the domicile of the Indian child;
    (6) If either the residence or the domicile of the Indian child is 
believed to be on a reservation or in an Alaska Native village, the 
name of the Tribe affiliated with that reservation or village;
    (7) The Tribal affiliation of the child and of the parents or 
Indian custodians;
    (8) A specific and detailed account of the circumstances that led 
the agency responsible for the emergency removal of the child to take 
that action;
    (9) If the child is believed to reside or be domiciled on a 
reservation where the Tribe exercises exclusive jurisdiction over 
child-custody matters, a statement of efforts that have been made and 
are being made to contact the Tribe and transfer the child to the 
Tribe's jurisdiction; and
    (10) A statement of the efforts that have been taken to assist the 
parents or Indian custodians so the Indian child may safely be returned 
to their custody.
    (e) An emergency proceeding regarding an Indian child should not be 
continued for more than 30 days unless the court makes the following 
determinations:
    (1) Restoring the child to the parent or Indian custodian would 
subject the child to imminent physical damage or harm;
    (2) The court has been unable to transfer the proceeding to the 
jurisdiction of the appropriate Indian Tribe; and
    (3) It has not been possible to initiate a ``child-custody 
proceeding'' as defined in Sec.  23.2.


Sec.  23.114  What are the requirements for determining improper 
removal?

    (a) If, in the course of any child-custody proceeding, any party 
asserts or the court has reason to believe that the Indian child may 
have been improperly removed from the custody of his or her parent or 
Indian custodian, or that the Indian child has been improperly retained 
(such as after a visit or other temporary relinquishment of custody), 
the court must expeditiously determine whether there was improper 
removal or retention.
    (b) If the court finds that the Indian child was improperly removed 
or retained, the court must terminate the proceeding and the child must 
be returned immediately to his or her parent or Indian custodian, 
unless returning the child to his parent or Indian custodian would 
subject the child to substantial and immediate danger or threat of such 
danger.

Petitions To Transfer to Tribal Court


Sec.  23.115  How are petitions for transfer of a proceeding made?

    (a) Either parent, the Indian custodian, or the Indian child's 
Tribe may request, at any time, orally on the record or in writing, 
that the State court transfer a foster-care or termination-of-parental-
rights proceeding to the jurisdiction of the child's Tribe.
    (b) The right to request a transfer is available at any stage in 
each foster-care or termination-of-parental-rights proceeding.


Sec.  23.116  What happens after a petition for transfer is made?

    Upon receipt of a transfer petition, the State court must ensure 
that the Tribal court is promptly notified in writing of the transfer 
petition. This notification may request a timely response regarding 
whether the Tribal court wishes to decline the transfer.


Sec.  23.117  What are the criteria for ruling on transfer petitions?

    Upon receipt of a transfer petition from an Indian child's parent, 
Indian custodian, or Tribe, the State court must transfer the child-
custody proceeding unless the court determines that transfer is not 
appropriate because one or more of the following criteria are met:
    (a) Either parent objects to such transfer;
    (b) The Tribal court declines the transfer; or
    (c) Good cause exists for denying the transfer.


Sec.  23.118  How is a determination of ``good cause'' to deny transfer 
made?

    (a) If the State court believes, or any party asserts, that good 
cause to deny transfer exists, the reasons for that belief or assertion 
must be stated orally on the record or provided in writing on the 
record and to the parties to the child-custody proceeding.
    (b) Any party to the child-custody proceeding must have the 
opportunity to provide the court with views regarding whether good 
cause to deny transfer exists.
    (c) In determining whether good cause exists, the court must not 
consider:
    (1) Whether the foster-care or termination-of-parental-rights 
proceeding is at an advanced stage if the Indian child's parent, Indian 
custodian, or Tribe did not receive notice of the child-custody 
proceeding until an advanced stage;
    (2) Whether there have been prior proceedings involving the child 
for which no petition to transfer was filed;

[[Page 38873]]

    (3) Whether transfer could affect the placement of the child;
    (4) The Indian child's cultural connections with the Tribe or its 
reservation; or
    (5) Socioeconomic conditions or any negative perception of Tribal 
or BIA social services or judicial systems.
    (d) The basis for any State-court decision to deny transfer should 
be stated orally on the record or in a written order.


Sec.  23.119  What happens after a petition for transfer is granted?

    (a) If the Tribal court accepts the transfer, the State court 
should expeditiously provide the Tribal court with all records related 
to the proceeding, including, but not limited to, the pleadings and any 
court record.
    (b) The State court should work with the Tribal court to ensure 
that the transfer of the custody of the Indian child and of the 
proceeding is accomplished smoothly and in a way that minimizes the 
disruption of services to the family.

Adjudication of Involuntary Proceedings


Sec.  23.120  How does the State court ensure that active efforts have 
been made?

    (a) Prior to ordering an involuntary foster-care placement or 
termination of parental rights, the court must conclude that active 
efforts have been made to prevent the breakup of the Indian family and 
that those efforts have been unsuccessful.
    (b) Active efforts must be documented in detail in the record.


Sec.  23.121  What are the applicable standards of evidence?

    (a) The court must not order a foster-care placement of an Indian 
child unless clear and convincing evidence is presented, including the 
testimony of one or more qualified expert witnesses, demonstrating that 
the child's continued custody by the child's parent or Indian custodian 
is likely to result in serious emotional or physical damage to the 
child.
    (b) The court must not order a termination of parental rights for 
an Indian child unless evidence beyond a reasonable doubt is presented, 
including the testimony of one or more qualified expert witnesses, 
demonstrating that the child's continued custody by the child's parent 
or Indian custodian is likely to result in serious emotional or 
physical damage to the child.
    (c) For a foster-care placement or termination of parental rights, 
the evidence must show a causal relationship between the particular 
conditions in the home and the likelihood that continued custody of the 
child will result in serious emotional or physical damage to the 
particular child who is the subject of the child-custody proceeding.
    (d) Without a causal relationship identified in paragraph (c) of 
this section, evidence that shows only the existence of community or 
family poverty, isolation, single parenthood, custodian age, crowded or 
inadequate housing, substance abuse, or nonconforming social behavior 
does not by itself constitute clear and convincing evidence or evidence 
beyond a reasonable doubt that continued custody is likely to result in 
serious emotional or physical damage to the child.


Sec.  23.122  Who may serve as a qualified expert witness?

    (a) A qualified expert witness must be qualified to testify 
regarding whether the child's continued custody by the parent or Indian 
custodian is likely to result in serious emotional or physical damage 
to the child and should be qualified to testify as to the prevailing 
social and cultural standards of the Indian child's Tribe. A person may 
be designated by the Indian child's Tribe as being qualified to testify 
to the prevailing social and cultural standards of the Indian child's 
Tribe.
    (b) The court or any party may request the assistance of the Indian 
child's Tribe or the BIA office serving the Indian child's Tribe in 
locating persons qualified to serve as expert witnesses.
    (c) The social worker regularly assigned to the Indian child may 
not serve as a qualified expert witness in child-custody proceedings 
concerning the child.


Sec.  23.123  [Reserved]

Voluntary Proceedings


Sec.  23.124  What actions must a State court undertake in voluntary 
proceedings?

    (a) The State court must require the participants in a voluntary 
proceeding to state on the record whether the child is an Indian child, 
or whether there is reason to believe the child is an Indian child, as 
provided in Sec.  23.107.
    (b) If there is reason to believe the child is an Indian child, the 
State court must ensure that the party seeking placement has taken all 
reasonable steps to verify the child's status. This may include 
contacting the Tribe of which it is believed the child is a member (or 
eligible for membership and of which the biological parent is a member) 
to verify the child's status. As described in Sec.  23.107, where a 
consenting parent requests anonymity, a Tribe receiving such 
information must keep relevant documents and information confidential.
    (c) State courts must ensure that the placement for the Indian 
child complies with Sec. Sec.  23.129-23.132.


Sec.  23.125  How is consent obtained?

    (a) A parent's or Indian custodian's consent to a voluntary 
termination of parental rights or to a foster-care, preadoptive, or 
adoptive placement must be executed in writing and recorded before a 
court of competent jurisdiction.
    (b) Prior to accepting the consent, the court must explain to the 
parent or Indian custodian:
    (1) The terms and consequences of the consent in detail; and
    (2) The following limitations, applicable to the type of child-
custody proceeding for which consent is given, on withdrawal of 
consent:
    (i) For consent to foster-care placement, the parent or Indian 
custodian may withdraw consent for any reason, at any time, and have 
the child returned; or
    (ii) For consent to termination of parental rights, the parent or 
Indian custodian may withdraw consent for any reason, at any time prior 
to the entry of the final decree of termination and have the child 
returned; or
    (iii) For consent to an adoptive placement, the parent or Indian 
custodian may withdraw consent for any reason, at any time prior to the 
entry of the final decree of adoption, and have the child returned.
    (c) The court must certify that the terms and consequences of the 
consent were explained on the record in detail in English (or the 
language of the parent or Indian custodian, if English is not the 
primary language) and were fully understood by the parent or Indian 
custodian.
    (d) Where confidentiality is requested or indicated, execution of 
consent need not be made in a session of court open to the public but 
still must be made before a court of competent jurisdiction in 
compliance with this section.
    (e) A consent given prior to, or within 10 days after, the birth of 
an Indian child is not valid.


Sec.  23.126  What information must a consent document contain?

    (a) If there are any conditions to the consent, the written consent 
must clearly set out the conditions.
    (b) A written consent to foster-care placement should contain, in 
addition to the information specified in paragraph (a) of this section, 
the name

[[Page 38874]]

and birthdate of the Indian child; the name of the Indian child's 
Tribe; the Tribal enrollment number for the parent and for the Indian 
child, where known, or some other indication of the child's membership 
in the Tribe; the name, address, and other identifying information of 
the consenting parent or Indian custodian; the name and address of the 
person or entity, if any, who arranged the placement; and the name and 
address of the prospective foster parents, if known at the time.


Sec.  23.127  How is withdrawal of consent to a foster-care placement 
achieved?

    (a) The parent or Indian custodian may withdraw consent to 
voluntary foster-care placement at any time.
    (b) To withdraw consent, the parent or Indian custodian must file a 
written document with the court or otherwise testify before the court. 
Additional methods of withdrawing consent may be available under State 
law.
    (c) When a parent or Indian custodian withdraws consent to a 
voluntary foster-care placement, the court must ensure that the Indian 
child is returned to that parent or Indian custodian as soon as 
practicable.


Sec.  23.128  How is withdrawal of consent to a termination of parental 
rights or adoption achieved?

    (a) A parent may withdraw consent to voluntary termination of 
parental rights at any time prior to the entry of a final decree of 
termination.
    (b) A parent or Indian custodian may withdraw consent to voluntary 
adoption at any time prior to the entry of a final decree of adoption.
    (c) To withdraw consent prior to the entry of a final decree of 
adoption, the parent or Indian custodian must file a written document 
with the court or otherwise testify before the court. Additional 
methods of withdrawing consent may be available under State law.
    (d) The court in which the withdrawal of consent is filed must 
promptly notify the person or entity who arranged any voluntary 
preadoptive or adoptive placement of such filing, and the Indian child 
must be returned to the parent or Indian custodian as soon as 
practicable.

Dispositions


Sec.  23.129  When do the placement preferences apply?

    (a) In any preadoptive, adoptive, or foster-care placement of an 
Indian child, the placement preferences specified in Sec.  23.130 and 
Sec.  23.131 apply.
    (b) Where a consenting parent requests anonymity in a voluntary 
proceeding, the court must give weight to the request in applying the 
preferences.
    (c) The placement preferences must be applied in any foster-care, 
preadoptive, or adoptive placement unless there is a determination on 
the record that good cause under Sec.  23.132 exists to not apply those 
placement preferences.


Sec.  23.130  What placement preferences apply in adoptive placements?

    (a) In any adoptive placement of an Indian child under State law, 
where the Indian child's Tribe has not established a different order of 
preference under paragraph (b) of this section, preference must be 
given in descending order, as listed below, to placement of the child 
with:
    (1) A member of the Indian child's extended family;
    (2) Other members of the Indian child's Tribe; or
    (3) Other Indian families.
    (b) If the Indian child's Tribe has established by resolution a 
different order of preference than that specified in ICWA, the Tribe's 
placement preferences apply.
    (c) The court must, where appropriate, also consider the placement 
preference of the Indian child or Indian child's parent.


Sec.  23.131  What placement preferences apply in foster-care or 
preadoptive placements?

    (a) In any foster-care or preadoptive placement of an Indian child 
under State law, including changes in foster-care or preadoptive 
placements, the child must be placed in the least-restrictive setting 
that:
    (1) Most approximates a family, taking into consideration sibling 
attachment;
    (2) Allows the Indian child's special needs (if any) to be met; and
    (3) Is in reasonable proximity to the Indian child's home, extended 
family, or siblings.
    (b) In any foster-care or preadoptive placement of an Indian child 
under State law, where the Indian child's Tribe has not established a 
different order of preference under paragraph (c) of this section, 
preference must be given, in descending order as listed below, to 
placement of the child with:
    (1) A member of the Indian child's extended family;
    (2) A foster home that is licensed, approved, or specified by the 
Indian child's Tribe;
    (3) An Indian foster home licensed or approved by an authorized 
non-Indian licensing authority; or
    (4) An institution for children approved by an Indian Tribe or 
operated by an Indian organization which has a program suitable to meet 
the child's needs.
    (c) If the Indian child's Tribe has established by resolution a 
different order of preference than that specified in ICWA, the Tribe's 
placement preferences apply, so long as the placement is the least-
restrictive setting appropriate to the particular needs of the Indian 
child, as provided in paragraph (a) of this section.
    (d) The court must, where appropriate, also consider the preference 
of the Indian child or the Indian child's parent.


Sec.  23.132  How is a determination of ``good cause'' to depart from 
the placement preferences made?

    (a) If any party asserts that good cause not to follow the 
placement preferences exists, the reasons for that belief or assertion 
must be stated orally on the record or provided in writing to the 
parties to the child-custody proceeding and the court.
    (b) The party seeking departure from the placement preferences 
should bear the burden of proving by clear and convincing evidence that 
there is ``good cause'' to depart from the placement preferences.
    (c) A court's determination of good cause to depart from the 
placement preferences must be made on the record or in writing and 
should be based on one or more of the following considerations:
    (1) The request of one or both of the Indian child's parents, if 
they attest that they have reviewed the placement options, if any, that 
comply with the order of preference;
    (2) The request of the child, if the child is of sufficient age and 
capacity to understand the decision that is being made;
    (3) The presence of a sibling attachment that can be maintained 
only through a particular placement;
    (4) The extraordinary physical, mental, or emotional needs of the 
Indian child, such as specialized treatment services that may be 
unavailable in the community where families who meet the placement 
preferences live;
    (5) The unavailability of a suitable placement after a 
determination by the court that a diligent search was conducted to find 
suitable placements meeting the preference criteria, but none has been 
located. For purposes of this analysis, the standards for determining 
whether a placement is unavailable must conform to the prevailing 
social and cultural standards of the Indian community in which the 
Indian child's parent or extended family resides or

[[Page 38875]]

with which the Indian child's parent or extended family members 
maintain social and cultural ties.
    (d) A placement may not depart from the preferences based on the 
socioeconomic status of any placement relative to another placement.
    (e) A placement may not depart from the preferences based solely on 
ordinary bonding or attachment that flowed from time spent in a non-
preferred placement that was made in violation of ICWA.

Access


Sec.  23.133  Should courts allow participation by alternative methods?

    If it possesses the capability, the court should allow alternative 
methods of participation in State-court child-custody proceedings 
involving an Indian child, such as participation by telephone, 
videoconferencing, or other methods.


Sec.  23.134  Who has access to reports and records during a 
proceeding?

    Each party to an emergency proceeding or a foster-care-placement or 
termination-of-parental-rights proceeding under State law involving an 
Indian child has a right to timely examine all reports and other 
documents filed or lodged with the court upon which any decision with 
respect to such action may be based.


Sec.  23.135  [Reserved]

Post-Trial Rights & Responsibilities


Sec.  23.136  What are the requirements for vacating an adoption based 
on consent having been obtained through fraud or duress?

    (a) Within two years after a final decree of adoption of any Indian 
child by a State court, or within any longer period of time permitted 
by the law of the State, the State court may invalidate the voluntary 
adoption upon finding that the parent's consent was obtained by fraud 
or duress.
    (b) Upon the parent's filing of a petition to vacate the final 
decree of adoption of the parent's Indian child, the court must give 
notice to all parties to the adoption proceedings and the Indian 
child's Tribe and must hold a hearing on the petition.
    (c) Where the court finds that the parent's consent was obtained 
through fraud or duress, the court must vacate the final decree of 
adoption, order the consent revoked, and order that the child be 
returned to the parent.


Sec.  23.137  Who can petition to invalidate an action for certain ICWA 
violations?

    (a) Any of the following may petition any court of competent 
jurisdiction to invalidate an action for foster-care placement or 
termination of parental rights under state law where it is alleged that 
25 U.S.C. 1911, 1912, or 1913 has been violated:
    (1) An Indian child who is or was the subject of any action for 
foster-care placement or termination of parental rights;
    (2) A parent or Indian custodian from whose custody such child was 
removed; and
    (3) The Indian child's Tribe.
    (b) Upon a showing that an action for foster-care placement or 
termination of parental rights violated any provision of 25 U.S.C. 
1911, 1912, or 1913, the court must determine whether it is appropriate 
to invalidate the action.
    (c) To petition for invalidation, there is no requirement that the 
petitioner's rights under ICWA were violated; rather, a petitioner may 
challenge the action based on any violations of 25 U.S.C. 1911, 1912, 
or 1913 during the course of the child-custody proceeding.


Sec.  23.138  What are the rights to information about adoptees' Tribal 
affiliations?

    Upon application by an Indian who has reached age 18 who was the 
subject of an adoptive placement, the court that entered the final 
decree of adoption must inform such individual of the Tribal 
affiliations, if any, of the individual's biological parents and 
provide such other information necessary to protect any rights, which 
may include Tribal membership, resulting from the individual's Tribal 
relationship.


Sec.  23.139  Must notice be given of a change in an adopted Indian 
child's status?

    (a) If an Indian child has been adopted, the court must notify, by 
registered or certified mail with return receipt requested, the child's 
biological parent or prior Indian custodian and the Indian child's 
Tribe whenever:
    (1) A final decree of adoption of the Indian child has been vacated 
or set aside; or
    (2) The adoptive parent has voluntarily consented to the 
termination of his or her parental rights to the child.
    (b) The notice must state the current name, and any former name, of 
the Indian child, inform the recipient of the right to petition for 
return of custody of the child, and provide sufficient information to 
allow the recipient to participate in any scheduled hearings.
    (c) A parent or Indian custodian may waive his or her right to such 
notice by executing a written waiver of notice and filing the waiver 
with the court.
    (1) Prior to accepting the waiver, the court must explain the 
consequences of the waiver and explain how the waiver may be revoked.
    (2) The court must certify that the terms and consequences of the 
waiver and how the waiver may be revoked were explained in detail in 
English (or the language of the parent or Indian custodian, if English 
is not the primary language), and were fully understood by the parent 
or Indian custodian.
    (3) Where confidentiality is requested or indicated, execution of 
the waiver need not be made in a session of court open to the public 
but still must be made before a court of competent jurisdiction in 
compliance with this section.
    (4) The biological parent or Indian custodian may revoke the waiver 
at any time by filing with the court a written notice of revocation.
    (5) A revocation of the right to receive notice does not affect any 
child-custody proceeding that was completed before the filing of the 
notice of revocation.

Recordkeeping


Sec.  23.140  What information must States furnish to the Bureau of 
Indian Affairs?

    (a) Any State court entering a final adoption decree or order in 
any voluntary or involuntary Indian-child adoptive placement must 
furnish a copy of the decree or order within 30 days to the Bureau of 
Indian Affairs, Chief, Division of Human Services, 1849 C Street NW., 
Mail Stop 4513 MIB, Washington, DC 20240, along with the following 
information, in an envelope marked ``Confidential'':
    (1) Birth name and birthdate of the Indian child, and Tribal 
affiliation and name of the Indian child after adoption;
    (2) Names and addresses of the biological parents;
    (3) Names and addresses of the adoptive parents;
    (4) Name and contact information for any agency having files or 
information relating to the adoption;
    (5) Any affidavit signed by the biological parent or parents asking 
that their identity remain confidential; and
    (6) Any information relating to Tribal membership or eligibility 
for Tribal membership of the adopted child.
    (b) If a State agency has been designated as the repository for all 
State-court adoption information and is fulfilling the duties described 
in paragraph (a) of this section, the State courts in that State need 
not fulfill those same duties.


Sec.  23.141  What records must the State maintain?

    (a) The State must maintain a record of every voluntary or 
involuntary foster-care, preadoptive, and adoptive

[[Page 38876]]

placement of an Indian child and make the record available within 14 
days of a request by an Indian child's Tribe or the Secretary.
    (b) The record must contain, at a minimum, the petition or 
complaint, all substantive orders entered in the child-custody 
proceeding, the complete record of the placement determination 
(including, but not limited to, the findings in the court record and 
the social worker's statement), and, if the placement departs from the 
placement preferences, detailed documentation of the efforts to comply 
with the placement preferences.
    (c) A State agency or agencies may be designated to be the 
repository for this information. The State court or agency should 
notify the BIA whether these records are maintained within the court 
system or by a State agency.


Sec.  23.142  How does the Paperwork Reduction Act affect this subpart?

    The collections of information contained in this part have been 
approved by the Office of Management and Budget under 44 U.S.C. 3501 et 
seq. and assigned OMB Control Number 1076-0186. Response is required to 
obtain a benefit. A Federal agency may not conduct or sponsor, and you 
are not required to respond to, a collection of information unless the 
form or regulation requesting the information displays a currently 
valid OMB Control Number. Send comments regarding this collection of 
information, including suggestions for reducing the burden, to the 
Information Collection Clearance Officer--Indian Affairs, 1849 C Street 
NW., Washington, DC 20240.

Effective Date


Sec.  23.143  How does this subpart apply to pending proceedings?

    None of the provisions of this subpart affects a proceeding under 
State law for foster-care placement, termination of parental rights, 
preadoptive placement, or adoptive placement that was initiated prior 
to December 12, 2016, but the provisions of this subpart apply to any 
subsequent proceeding in the same matter or subsequent proceedings 
affecting the custody or placement of the same child.

Severability


Sec.  23.144  What happens if some portion of this part is held to be 
invalid by a court of competent jurisdiction?

    If any portion of this part is determined to be invalid by a court 
of competent jurisdiction, the other portions of the part remain in 
effect. For example, the Department has considered separately whether 
the provisions of this part apply to involuntary and voluntary 
proceedings; thus, if a particular provision is held to be invalid as 
to one type of proceeding, it is the Department's intent that it 
remains valid as to the other type of proceeding.

    Dated: June 6, 2016.
Lawrence S. Roberts,
Acting Assistant Secretary--Indian Affairs.
[FR Doc. 2016-13686 Filed 6-13-16; 8:45 am]
BILLING CODE 4310-02-P