The Biden administration has finalized the new rules for incorporating the Indian Child Welfare Act into the federal collection of data through the Adoption and Foster Care Analysis and Reporting System, or AFCARS. Click here to read the final rule, which was released in today’s Federal Register.
It is important to note that the addition of ICWA to this system is not in and of itself a compliance action, because the federal agency that collects child welfare data — the Administration for Children and Families — does not actually have jurisdiction over the decades-old law. That would be the Bureau of Indian Affairs, a division of the Department of Interior. But certainly, the first meaningful attempt to capture specifics about how ICWA cases proceed will aid in federal monitoring as well as the work of advocates for Indigenous communities.
Will this rule hold up? It will be interesting to see, because this is definitely a bit of history repeating itself.
With the first Trump administration preparing to take over in 2017, the Obama team finalized several child welfare-related rules in their waning months, including one pretty much identical to this Biden ICWA rule. The Obama version actually covered a wide swath of new additions to AFCARS, including ICWA, educational stability, gender identity and more.
An incoming administration has the discretion to freeze and roll back rules put in place in the final months of its predecessor, and Trump elected to do that in a lot of cases, including the Obama AFCARS rule. The Children’s Bureau announced it would have a Trump re-write of new AFCARS elements by fall of 2020.
The Trump rule came much earlier, first announced in the spring of 2019. It greatly limited the scope of ICWA elements to be added to AFCARS, and entirely scrapped plans to add information about sexual orientation and gender identity of children and parents. Those changes prompted a legal challenge in federal court, brought by a group of tribes and LGBTQ advocates, that lingered throughout his term and into Biden’s.
The court did not ultimately rule in favor of plaintiffs, but the Biden team promised to move forward on new ICWA and sexual orientation and gender identity elements for AFCARS. The ICWA proposal came out in February, and today’s inclusion in the Federal Register completes that action. Last Youth Services Insider checked, a new proposed rule on the latter topic had been written but was still in legal review.
Will things take a similar path this time? Youth Services Insider’s guess is that the ICWA rule will stand this time. During the previous back-and-forth, there was a constitutional challenge to ICWA that was gaining steam in the federal courts and ultimately made it before the Supreme Court. While challenges to the law continue, the 7-2 upholding of ICWA by the high court was a pretty resounding statement that it is here to stay.
It is possible that a proposed rule on sexual orientation and gender identity will come out before inauguration, but you’d have to consider that symbolic at this point. There would be no time to go through the public comment period necessary before finalizing a federal rule, and the Trump administration would almost certainly freeze and then roll back the rule anyway.
