The Biden administration announced plans to add new requirements for states to report on their compliance with the Indian Child Welfare Act (ICWA), a decades-old law designed to maintain
the bonds between Native children and their families and tribes.
“This proposed change goes beyond just collecting data. It will also move us a step closer to valuing the experiences of Native families and furthering our goals of keeping children in their homes and communities,” said Xavier Becerra, secretary of the Department of Health and Human Services.
The federal Adoption and Foster Care Analysis and Reporting System (AFCARS) sorely needed an update for decades as more and more legislation passed that added new funding for and requirements on child welfare systems. But no aspect of the field has been longer ignored in AFCARS than the Indian Child Welfare Act, which actually precedes most other child welfare legislation in the country’s history.
ICWA became law in 1978, at a time when up to a third of Native American children were placed into foster care or adoptive homes. While the Department of the Interior actually has executive branch jurisdiction over the law, it would be wildly inefficient to create a separate data system there when Health and Human Services already collects child welfare system information through AFCARS.
A 2020 update to AFCARS included a few new elements, including the tribal status of children, parents and caregivers; how often states made inquiries about ICWA status in cases; notification of tribes about ICWA cases; and when states are notified by tribes about possible ICWA involvement in a case.
The data already collected through that 2020 rule “is a good start, but does not provide sufficient information about Native children to meaningfully inform policy-making,” said Administration on Children, Youth, and Families Commissioner, Rebecca Jones Gaston, in the statement announcing the new proposed rule.
The Biden administration would add dozens of new data elements that focus more specifically on whether states are complying with the law. This includes information about whether active efforts were made to prevent foster care or separation from families and tribes, and if the placement preferences in ICWA have been properly followed.
The new proposed elements are “critical to being able to assess whether states are in compliance with the provisions of the ICWA,” Angelique Day, an associate professor at the University of Washington School of Social Work, told Youth Services Insider. “ICWA can only fully be realized as the gold standard for child welfare if we are following it according to legislative intent.”
The addition of these new ICWA elements could bring to a close a seven-year administrative roller coaster in the pursuit of new child welfare data. A quick review:
January 2017: On its way out the door, the Obama administration finalizes new data collection requirements in AFCARS, the first update to the system since 1993. It included a lot: ICWA elements, disruptions of adoptions and guardianships, sexual orientation and gender identity, health conditions of foster youth, educational stability, juvenile justice involvement by foster youth, and a one-day count of how many siblings are together (or are not) in foster care.
Later that month, after President Trump was inaugurated, his administration froze this rule along with almost every other one the Obama team had wrapped up in its waning days.
September 2018: The Trump administration announced it would be delaying the issuance of a new AFCARS rule until 2020, and indicated that it would be making significant changes to the Obama plan.
April 2019: Trump issued a proposed rule for AFCARS requirements that slashed the amount of elements related to Indigenous youth and families, and eliminated entirely the sexual orientation, gender identity, education, health and juvenile justice elements in the Obama rule.
May 2020: The Trump rules for AFCARS are finalized.
August 2020: Advocates for Native American and LGBTQ foster youth filed suit against the Trump administration after federal officials tossed out a long-awaited plan to collect more data about these most vulnerable young people to inform services and improve their outcomes.
When Biden was inaugurated in January of 2021, his administration became the defendant. While the administration sought summary judgment allowing the Trump rule to move forward, it also indicated to advocates that it intended to write new rules that added more ICWA data and included the sexual orientation and gender identity elements.
November 2022: The United States District Court, Northern District of California issued a summary judgment in favor of the Biden administration, meaning the Trump 2020 rule stood. The plaintiffs agreed to hold off on appealing under the agreement that the administration would provide periodic updates on progress toward introducing new rules.
May 2023: State child welfare agencies are required for the first time to provide new data required by the Trump administration in the 2020 rule.
Assuming this ICWA proposal is finalized, that leaves the sexual orientation and gender identity yet to be addressed. It could be that there are plans to reintroduce those elements and others in a forthcoming proposed rule. Youth Services Insider has asked the administration if more additions to AFCARS are in the offing, and will update readers if and when we learn more.
