10146 Federal Register / Vol. 80, No. 37 / Wednesday, February 25, 2015 / Notices 

ENFORCEMENT ACTIONS TAKEN BY TSA IN CALENDAR YEAR 2014—Continued 

TSA Case number/type of violation Penalty proposed/assessed 

TSA Case # 2014IAD0082—TWIC—Fraudulent Use or Manufacture (49 CFR 1570.7) .......................................... $4,000/$4,000. 

TSA Case # 2014IAD0083—TWIC—Fraudulent Use or Manufacture (49 CFR 1570.7) .......................................... $4,000/$2,000. 

[FR Doc. 2015–03798 Filed 2–24–15; 8:45 am] 

BILLING CODE 9110–05–P 

DEPARTMENT OF HOUSING AND 

URBAN DEVELOPMENT 

[Docket No. FR–5851–N–01] 

Rental Assistance Demonstration 

(RAD)—Alternative Requirements or 

Waivers: Waiving and Specifying 

Alternative Requirements for the 20 

Percent Portfolio Cap on ProjectBasing and Certain Tenant Protection 

and Participation Provisions for the 

San Francisco Housing Authority’s 

RAD Projects 

AGENCY: Office of the Assistant 

Secretary for Public and Indian 

Housing, and Office of the Assistant 

Secretary for Housing—Federal Housing 

Commissioner, HUD. 

ACTION: Notice. 

SUMMARY: The RAD statute gives HUD 

authority to establish waivers and 

alternative requirements. Pursuant to 

this authority, HUD has waived, to date, 

the statutory 20 percent cap on projectbasing of a PHA’s tenant-based voucher 

funding for RAD-converted units. This 

notice advises that HUD is waiving for 

the San Francisco Housing Authority 

(SFHA), to a limited extent and subject 

to certain conditions, the 20 percent cap 

on project-basing and certain other 

provisions governing project-based 

assistance with respect to an identified 

portfolio that includes RAD funding. 

These waivers are in response to plans 

submitted by SFHA to address capital 

needs of the portfolio and preserve 

available affordable housing for the 

SFHA’s jurisdiction. Without this 

waiver, SFHA states that its plan for 

improving its affordable housing 

portfolio with RAD would not be 

workable, and the conversion of units 

under RAD would not be effective for its 

purpose. 

DATES: Effective Date: March 9, 2015. 

FOR FURTHER INFORMATION CONTACT: 

Janet Golrick, Acting Director of the 

Office of Recapitalization, Office of 

Housing, Department of Housing and 

Urban Development, 451 7th Street SW., 

Washington, DC 20410–7000; telephone 

number 202–708–0001 (this is not a tollfree number). Hearing- and speechimpaired persons may access these 

numbers through TTY by calling the 

Federal Relay Service at 800–877–8339 

(this is a toll-free number). 

Background and Action 

The RAD statute (Pub. L. 112–55, 

approved November 18, 2011) gives 

HUD authority to waive or specify 

alternative requirements for, among 

other things, section 8(o)(13) of the 

United States Housing Act of 1937 (the 

1937 Act). In order to utilize this 

authority, the RAD statute requires HUD 

to publish by notice in the Federal 

Register any waiver or alternative 

requirement no later than 10 days before 

the effective date of such notice. This 

notice meets this publication 

requirement. 

On July 2, 2013, notice 2012–32 Rev1(as corrected by the technical 

correction issued February 6, 2014) 

(‘‘the revised notice’’) superseded PIH 

Notice 2012–32. The revised notice is 

found at the following URL: http://

portal.hud.gov/hudportal/HUD?src=/

program_offices/public_indian_

housing/publications/notices/2012. 

The revised notice at section 1.9, 

paragraph F, entitled ‘‘Portfolio 

Awards,’’ also sets forth a new option of 

a ‘‘portfolio award,’’ which allows PHAs 

to apply for RAD conversions affecting 

a group of projects. This type of award 

is meant to enable PHAs to create a 

comprehensive revitalization plan for 

multiple buildings they oversee. SFHA 

has submitted an application for a 

portfolio award under RAD. 

The revised notice contains a waiver 

of 8(o)(13)(B) and other sections of the 

1937 Act. Section 1.6, ‘‘Special 

Provisions Affecting Conversions to 

PBVs,’’ at paragraph A.1, allows a 

project that converts from one form of 

rental assistance to another under RAD 

to exceed the 20 percent project-basing 

cap. Section 1.6.A.2 allows sets 

alternate requirements for the percent 

limitation on the number of units in a 

project that may receive PBV assistance. 

Section 1.6.C. sets forth alternative 

requirements for resident rights and 

participation. (Collectively, the waivers 

and alternative requirements set forth in 

Sections 1.6.A.1, 1.6.A.2 and 1.6.C are 

referred to herein as the ‘‘Applicable 

Alternative Tenanting Requirements.’’) 

As part of its application for a 

portfolio award, SFHA’s comprehensive 

revitalization planning contemplates not 

only the conversion of assistance 

pursuant to RAD, but also to 

supplement such converted projects by 

project-basing additional voucher 

assistance. SFHA has submitted a 

waiver request that seeks permission to 

apply the Applicable Alternative 

Tenanting Requirements to all units in 

those projects with assistance converted 

under RAD. HUD has granted that 

request, subject to certain conditions 

which SFHA has agreed to carry out. 

Dated: February 13, 2015. 

Jemine A. Bryon, 

Acting Assistant Secretary for Public and 

Indian Housing. 

Biniam T. Gebre, 

Acting Assistant Secretary for Housing— 

Federal Housing Commissioner. 

[FR Doc. 2015–03780 Filed 2–24–15; 8:45 am] 

BILLING CODE 4210–67–P 

DEPARTMENT OF THE INTERIOR 

Bureau of Indian Affairs 

[K00103 12/13 A3A10; 134D0102DR– 

DS5A300000–DR.5A311.IA000113] 

Guidelines for State Courts and 

Agencies in Indian Child Custody 

Proceedings 

AGENCY: Bureau of Indian Affairs, 

Interior. 

ACTION: Notice. 

SUMMARY: These updated guidelines 

provide guidance to State courts and 

child welfare agencies implementing the 

Indian Child Welfare Act’s (ICWA) 

provisions in light of written and oral 

comments received during a review of 

the Bureau of Indian Affairs (BIA) 

Guidelines for State Courts in Indian 

Child Custody Proceedings published in 

1979. They also reflect 

recommendations made by the Attorney 

General’s Advisory Committee on 

American Indian/Alaska Native 

Children Exposed to Violence and 

significant developments in 

jurisprudence since ICWA’s inception. 

The updated BIA Guidelines for State 

Courts and Agencies in Indian Child 

Custody Proceedings promote 

compliance with ICWA’s stated goals 

and provisions by providing a 

framework for State courts and child 


asabaliauskas on DSK5VPTVN1PROD with NOTICES
Federal Register / Vol. 80, No. 37 / Wednesday, February 25, 2015 / Notices 10147 

welfare agencies to follow, as well as 

best practices for ICWA compliance. 

Effective immediately, these guidelines 

supersede and replace the guidelines 

published in 1979. 

DATES: These guidelines are effective on 

February 25, 2015. 

FOR FURTHER INFORMATION CONTACT: 

Hankie Ortiz, Deputy Director—Indian 

Services, Bureau of Indian Affairs, U.S. 

Department of the Interior, 1849 C 

Street, NW., Washington, DC 20240, 

(202) 208–2874; hankie.ortiz@bia.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

These updated BIA guidelines 

provide standard procedures and best 

practices to be used in Indian child 

welfare proceedings in State courts. The 

updated guidelines are issued in 

response to comments received during 

several listening sessions, written 

comments submitted throughout 2014, 

and recommendations of the Attorney 

General’s Advisory Committee on 

American Indian/Alaska Native 

Children Exposed to Violence. 

Congress enacted ICWA in 1978 to 

address the Federal, State, and private 

agency policies and practices that 

resulted in the ‘‘wholesale separation of 

Indian children from their families.’’ H. 

Rep. 95–1386 (July 24, 1978), at 9. 

Congress found ‘‘that an alarmingly high 

percentage of Indian families are broken 

up by the removal, often unwarranted, 

of their children from them by nontribal 

public and private agencies and that an 

alarmingly high percentage of such 

children are placed in non-Indian foster 

and adoptive homes and institutions 

. . . . ’’ 25 U.S.C. 1901(4). Congress 

determined that cultural ignorance and 

biases within the child welfare system 

were significant causes of this problem 

and that state 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); H. Rep. 95–1386, at 10. 

Congress enacted ICWA to ‘‘protect the 

best interests of Indian children and to 

promote 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 or institutions which 

will reflect the unique values of Indian 

culture.’’ H. Rep. 95–1386, at 8. ICWA 

thus articulates a strong ‘‘federal policy 

that, where possible, an Indian child 

should remain in the Indian 

community.’’ Mississippi Band of 

Choctaw Indians v. Holyfield, 490 U.S. 

30 (1989) (citing H. Rep. 95–1386 at 24). 

Following ICWA’s enactment, in July 

1979, the Department of the Interior 

(Department) issued regulations 

addressing notice procedures for 

involuntary child custody proceedings 

involving Indian children, as well as 

governing the provision of funding for 

and administration of Indian child and 

family service programs as authorized 

by ICWA. See 25 CFR part 23. Those 

regulations did not address the specific 

requirements and standards that ICWA 

imposes upon State court child custody 

proceedings, beyond the requirements 

for contents of the notice. Also, in 1979, 

the BIA published guidelines for State 

courts to use in interpreting many of 

ICWA’s requirements in Indian child 

custody proceedings. 44 FR 67584 (Nov. 

26, 1979). Although there have been 

significant developments in ICWA 

jurisprudence, the guidelines have not 

been updated since they were originally 

published in 1979. Much has changed 

in the 35 years since the original 

guidelines were published, but many of 

the problems that led to the enactment 

of ICWA persist. 

In 2014, the Department invited 

comments to determine whether to 

update its guidelines and 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 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, such as the Christian 

Alliance for Indian Child Welfare and 

the American Academy of Adoption 

Attorneys. An overwhelming proportion 

of the commenters requested that the 

Department update its ICWA guidelines 

and many had suggestions for revisions 

that have been included. The 

Department reviewed and considered 

each comment in developing these 

revised Guidelines. 

II. Statutory Authority 

The Department is issuing these 

updated guidelines under ICWA, 25 

U.S.C. 1901 et seq., and its authority 

over the management of all Indian 

affairs under 25 U.S.C. 2. 

III. Summary of Updates 

The 1979 guidelines included 

‘‘commentary’’ for each section, which 

was intended to explain the 

requirements of each section. The 

updated guidelines are clearer, making 

the commentary unnecessary. 

Recognizing the important role that 

child welfare agencies play in ICWA 

compliance, these updated guidelines 

broaden the audience of the guidelines 

to include both State courts and any 

agency or other party seeking placement 

of an Indian child. The guidelines 

identify procedures to address 

circumstances in which a parent desires 

anonymity in a voluntary proceeding. 

Those procedures clarify that a parent’s 

desire for anonymity does not override 

the responsibility to comply with ICWA. 

The guidelines also establish that 

agencies and courts should document 

their efforts to comply with ICWA. The 

following paragraphs include sectionby-section highlights of the substantive 

updates that these guidelines make to 

the 1979 version. 

Section A. General Provisions (formerly, 

entitled ‘‘Policy’’) 

The updated guidelines add several 

provisions to section A, to provide 

better context for the guidelines and 

clear direction on implementing the 

guidelines. For example, this section 

includes definitions of key terms used 

throughout the guidelines, such as 

‘‘active efforts’’ and ‘‘child custody 

proceeding.’’ The phrase ‘‘active efforts’’ 

has been inconsistently interpreted. The 

guidelines’ definition is intended to 

provide clarity—particularly in 

establishing that ‘‘active efforts’’ require 

a level of effort beyond ‘‘reasonable 

efforts.’’ 

Section A also includes an 

applicability section, which 

incorporates many of the provisions of 

the 1979 guidelines’ section B.3. In 

addition, section A: 

• Clarifies that agencies and State 

courts must ask, in every child custody 

proceeding, whether ICWA applies; 

• Clarifies that courts should follow 

ICWA procedures even when the Indian 

child is not removed from the home, in 

order to allow tribes to intervene as 

early as possible to assist in preventing 

a breakup of the family; and 

• Provides that, where agencies and 

State courts have reason to know that a 

child is an Indian child, they must treat 

that child as an Indian child unless and 

until it is determined that the child is 

not an Indian child. 

These clarifications are necessary to 

ensure that the threshold question for 

determining whether ICWA applies (is 


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10148 Federal Register / Vol. 80, No. 37 / Wednesday, February 25, 2015 / Notices 

the child an Indian child?) is asked, and 

asked as soon as possible. If such 

inquiry is not timely made, a court 

proceeding may move forward without 

appropriate individuals aware that 

ICWA applies and that certain 

procedures must be followed. Tragic 

consequences may result. 

The updated guidelines also add a 

section regarding how to contact a tribe, 

in case the agency or State court is 

unfamiliar with whom to contact. 

Section A is intended to make clear 

that there is no existing Indian family 

(EIF) exception to application of ICWA. 

The EIF doctrine is a judicially-created 

exception to the application of ICWA. 

Since first recognition of the EIF in 

1982, the majority of State appellate 

courts that have considered the EIF have 

rejected it as contrary to the plain 

language of ICWA. Some State 

legislatures have also explicitly rejected 

the EIF within their State ICWA 

statutes. The Department agrees with 

the States that have concluded that 

there is no existing Indian family 

exception to application of ICWA. 

Section A also clarifies that ICWA and 

the guidelines apply in certain 

voluntary placements. 

Section B. Pretrial Requirements 

The updated guidelines, and section B 

in particular, promote the early 

identification of ICWA applicability. 

Such identifications will promote 

proper implementation of ICWA at an 

early stage, to prevent—as much as 

possible—delayed discoveries that 

ICWA applies. Often, those 

circumstances resulting from delayed 

discoveries have caused heartbreaking 

separations and have sometimes led to 

noncompliance with ICWA’s 

requirements. By requiring agencies and 

courts to consider, as early as possible, 

whether ICWA applies, the updated 

guidelines will ensure that proper 

notice is given to parents/Indian 

custodians and tribes, that tribes have 

the opportunity to intervene or take 

jurisdiction over proceedings, as 

appropriate, and that ICWA’s placement 

preferences are respected. 

With regard to early discovery, 

section B requires agencies and courts to 

consider whether the child is an Indian 

child, and sets out the steps for 

verifying the tribe(s) and providing 

notice to the parents/Indian custodians 

and tribe(s). Section B also adds 

guidance regarding the evidence a court 

may require an agency to provide of the 

agency’s investigations into whether the 

child is an Indian child. 

With regard to application of ICWA, 

the updated section B clarifies when the 

Act’s requirement to conduct ‘‘active 

efforts’’ begins. ICWA requires ‘‘active 

efforts to provide remedial services and 

rehabilitative programs designed to 

prevent the breakup of the Indian 

family.’’ See 25 U.S.C. 1912(d). The 

updated section B clarifies that active 

efforts must begin from the moment the 

possibility arises that the Indian child 

may be removed. This updated section 

also clarifies that active efforts should 

be conducted while verifying whether 

the child is an Indian child; this 

clarification ensures compliance with 

ICWA in cases in which the status of 

whether the child is an Indian child is 

not verified until later in the 

proceedings. 

Section B adds a new paragraph 

clarifying that the tribe alone retains the 

responsibility to determine tribal 

membership. This section makes clear 

that there is no requirement for the 

child to have a certain degree of contact 

with the tribe or for a certain blood 

degree, and notes that a tribe may lack 

written rolls. The updated guidelines 

delete the provision allowing BIA, in 

lieu of the tribe, to verify the child’s 

status. This provision has been deleted 

because it has become increasingly rare 

for the BIA to be involved in tribal 

membership determinations, as tribes 

determine their own membership. See 

e.g., Santa Clara Pueblo v. Martinez, 436 

U.S. 49 (1978). (‘‘Congress’ authority 

over Indian matters is extraordinarily 

broad, and the role of courts in adjusting 

relations between and among tribes and 

their members correspondingly 

restrained.’’) BIA may assist in 

contacting the tribe to ensure a 

determination, however. 

The updated section B also expands 

upon procedures for determining a 

child’s tribe in the event that more than 

one tribe is identified as the child’s 

tribe. Specifically, it changes the criteria 

for determining with which tribe the 

child has ‘‘significant contacts,’’ adding 

that the parents’ preference for 

membership will be considered, and 

deleting factors that are subjective or 

inapplicable to infants. 

With regard to providing notice to 

Indian tribes and the child’s parents/

Indian custodians, the updated section 

B: 

• Clarifies that notice is required for 

each proceeding (not just for the first or 

last proceeding); 

• States that notice must be sent, at a 

minimum, by registered mail, return 

receipt requested, and that personal 

service or other types of service may be 

in addition to, but not in lieu of, such 

mail; and 

• Clarifies that the tribe has the right 

to intervene at any time. 

This section also clarifies how 

guidelines apply if the child is 

transferred interstate. 

The updated guidelines expand upon 

the emergency procedure provisions in 

light of evidence that some States 

routinely rely upon emergency removals 

and placements in a manner that 

bypasses implementation of ICWA. See 

Oglala Sioux Tribe v. Hunnik, Case No. 

5:13–cv–05020–JLV, Amicus Brief of the 

United States, at *5–6 (D.S.D. Aug. 14, 

2014) (involving allegations that: (1) 

Defendants are conducting perfunctory 

48-hour hearings that do not adequately 

gather or evaluate information necessary 

to determine whether emergency 

removals or placements should be 

terminated, and that the orders issued at 

the end of the 48-hour hearing do not 

adequately instruct State officials to 

return the child to the home as soon as 

the emergency has ended; (2) 

Defendants are violating the Due 

Process Clause by preventing parents 

from testifying, presenting evidence, or 

cross-examining the State’s witnesses at 

the 48-hour hearing; and (3) parents are 

not being provided adequate notice or 

the opportunity to be represented by 

appointed counsel and that the State 

courts are issuing orders to remove 

Indian children from their homes 

without basing those orders on evidence 

adduced in the hearing). Because ICWA 

was intended to help prevent the 

breakup of Indian families; therefore, 

emergency removals and emergency 

placements of Indian children should be 

severely limited, applying only in 

circumstances involving imminent 

physical damage or harm. The updated 

section B clarifies that the guidelines for 

emergency removal or placement apply 

regardless of whether the Indian child is 

a resident of or domiciled on a 

reservation. This section also explicitly 

states the standard for determining 

whether emergency removal or 

emergency placement is appropriate— 

i.e., whether it is necessary to prevent 

imminent physical damage or harm to 

the child—and provides examples. The 

guidelines clearly state that the 

emergency removal/placement must be 

as short as possible, and provides 

guidance on how to ensure it is as short 

as possible. It also shortens the time 

period for temporary custody without a 

hearing or extraordinary circumstances 

from 90 days to 30 days. This shortened 

timeframe promotes ICWA’s important 

goal of preventing the breakup of Indian 

families. 

Section C. Procedures for Transfer to 

Tribal Court 

The updated section C deletes the 

requirement that requests to transfer to 


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Federal Register / Vol. 80, No. 37 / Wednesday, February 25, 2015 / Notices 10149 

tribal court be made ‘‘promptly after 

receiving notice of the proceeding’’ 

because there is no such requirement in 

ICWA. Instead, the updated guidelines 

clarify that the right to transfer is 

available at any stage of a proceeding, 

including during an emergency removal. 

The updated section C also clarifies that 

the right to request a transfer occurs 

with each distinct proceeding. ICWA 

contains no restriction on the right to 

request a transfer occurring at the first, 

last, or any specific child custody 

proceeding. A tribe may decide that 

transfer is not appropriate until it 

reaches the stage where parental 

termination is being determined. 

The updated section C also updates 

the ‘‘good cause’’ factors for denying 

transfer to tribal court. The updated 

criteria are more general; in summary, 

good cause may be found if either 

parent objects, the tribal court declines, 

or the State court otherwise determines 

that good cause exists. The updated 

guidelines specifically omit some of the 

factors that were the basis for finding 

that ‘‘good cause’’ exists under the 1979 

guidelines. One such factor that should 

no longer be considered is whether the 

proceeding was at an advanced stage. As 

mentioned above, there may be valid 

reasons for waiting to transfer a 

proceeding until it reaches an advanced 

stage. Another factor that should no 

longer be considered is the level of 

contacts the child has had with the 

tribe—this factor unnecessarily 

introduces an outsider’s evaluation of 

the child’s relationship with the tribe 

and cannot sensibly be applied to 

infants. 

The updated guidelines also specify 

that it is inappropriate to conduct an 

independent analysis, inconsistent with 

ICWA’s placement preferences, of the 

‘‘best interest’’ of an Indian child. The 

provisions of ICWA create a 

presumption that ICWA’s placement 

preferences are in the best interests of 

Indian children; therefore, an 

independent analysis of ‘‘best interest’’ 

would undermine Congress’s findings. 

Finally, the updated guidelines provide 

that the tribal court’s prospective 

placement of an Indian child should not 

be considered, because it invites 

speculation regarding the tribal court’s 

findings and conclusions and, therefore, 

undermines the independence of tribal 

court decision making. 

Section D. Adjudication of Involuntary 

Placements, Adoptions, or Terminations 

or Terminations of Parental Rights 

The updated section D establishes 

that parties have the right to examine 

records and reports in a timely manner; 

this ensures that parents/Indian 

custodians and tribes have the 

opportunity to examine information 

necessary to protect their rights under 

ICWA. This updated section also 

expands significantly on how to comply 

with the Act’s ‘‘active efforts’’ 

requirement. Specifically, the updated 

guidelines: 

• Require demonstration that ‘‘active 

efforts’’ were made, not only ‘‘prior to’’ 

the commencement of the proceeding, 

but also ‘‘until’’ the commencement of 

the proceeding; 

• Require documentation of what 

‘‘active efforts’’ were made; and 

Require a showing that active efforts 

have been unsuccessful. The updated 

section D also provides guidance 

regarding how to identify an appropriate 

‘‘qualified expert witness.’’ Commenters 

indicated that some States rely on 

witnesses’ qualifications as child care 

specialists, or on other areas of 

expertise, but do not require any expert 

knowledge related to the tribal 

community. The updated guidelines 

establish a preferential order for 

witnesses who are experts in the culture 

and customs of the Indian child’s tribe. 

This will ensure that the expert witness 

with the most knowledge of the Indian 

child’s tribe is given priority. 

Section E. Voluntary Proceedings 

ICWA applies to voluntary 

proceedings that operate to prohibit an 

Indian child’s parent or Indian 

custodian from regaining custody of the 

child upon demand; nevertheless, 

evidence suggests that ICWA is 

sometimes ignored or intentionally 

bypassed in voluntary proceedings. The 

updated section E clarifies that, even in 

voluntary proceedings, it is necessary to 

determine whether ICWA applies, and 

to comply with ICWA’s provisions. To 

ensure that parents and Indian 

custodians understand the significance 

of their consent, the updated section E 

requires the consent document to 

identify any conditions to the consent 

and requires the court to explain the 

consequences of the consent before its 

execution. It also addresses steps for 

withdrawal of consent. The updated 

section E further restates the statutory 

restriction that a consent given prior to 

or within 10 days after birth of an 

Indian child is not valid. 

Section F. Dispositions 

The updated guidelines provide more 

information regarding when and how to 

apply ICWA’s placement preferences for 

foster and adoptive placements. In some 

cases, agencies fail to conduct any 

investigation of whether placements 

that conform to ICWA’s placement 

preferences are available. The updated 

section F requires that: 

• The agency bears the burden of 

proof if it departs from any of the 

placement preferences and must 

demonstrate that it conducted a diligent 

search to identify placement options 

that satisfy the placement preferences, 

including notification to the child’s 

parents or Indian custodians, extended 

family, tribe, and others; and 

• The court determines whether 

‘‘good cause’’ to deviate from the 

placement preferences exists before 

departing from the placement 

preferences. 

The updated section F also adds 

provisions to ensure that ‘‘good cause’’ 

determinations are explained to all 

parties and documented. 

Evidence suggests that ‘‘good cause’’ 

has been liberally relied upon to deviate 

from the placement preferences in the 

past. Commenters noted that, in some 

cases, a State court departed from the 

placement preferences because an 

Indian child has spent significant time 

in a family’s care, despite the fact that 

the placement was made in violation of 

ICWA. The guidelines attempt to 

prevent such circumstances from arising 

by encouraging early compliance with 

ICWA (see sections A and B, in 

particular). The guidelines also specify 

in section F that ‘‘good cause’’ does not 

include normal bonding or attachment 

that may have resulted from a 

placement that failed to comply with 

the Act. As in other parts of the 

guidelines, this section clarifies that an 

independent consideration of the child’s 

‘‘best interest’’ is inappropriate for this 

determination because Congress has 

already addressed the child’s best 

interest in ICWA. Because ICWA does 

not allow for consideration of socioeconomic status in the placement 

preferences, this section also now 

clarifies that the court may not depart 

from the preferences based on the socioeconomic status of one placement 

relative to another, except in extreme 

circumstances. 

Section G. Post-Trial Rights 

ICWA is intended to protect the 

rights, not only of Indian children, 

parents and Indian custodians, but also 

of Indian tribes. The updated guidelines 

establish that an Indian child, parent or 

Indian custodian, or tribe may petition 

to invalidate an action if the Act or 

guidelines have been violated, 

regardless of which party’s rights were 

violated. This approach promotes 

compliance with ICWA and reflects that 

ICWA is intended to protect the rights 

of each of these parties. 


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Adults who had been adopted by nonIndian families and seek to reconnect 

with their tribes often face significant 

hurdles in obtaining needed 

information. The updated guidelines 

attempt to protect those adults’ rights to 

obtain information about their tribal 

relationship by specifying that, even in 

States where adoptions remain closed, 

the relevant agency should facilitate 

communication directly with the tribe’s 

enrollment office. 

The guidelines also recommend that 

courts work with tribes to identify tribal 

designees who can assist adult adoptees 

to connect with their tribes. 

Finally, the updated guidelines clarify 

that the requirement to maintain records 

on foster care, preadoptive placement 

and adoptive placements applies not 

only in involuntary proceedings, but 

also in voluntary proceedings. 

IV. Guidance 

These guidelines supersede and 

replace the guidelines published at 44 

FR 67584 (November 28, 1979). 

Guidelines for State Courts and Agencies in 

Indian Child Custody Proceedings 

A. General Provisions 

1. What is the purpose of these guidelines? 

2. What terms do I need to know? 

3. When does ICWA apply? 

4. How do I contact a tribe under these 

guidelines? 

5. How do these guidelines interact with 

State laws? 

B. Pretrial Requirements 

1. When does the requirement for active 

efforts begin? 

2. What actions must an agency and State 

court undertake to determine whether a 

child is an Indian child? 

3. Who makes the determination as to 

whether a child is a member of a tribe? 

4. What is the procedure for determining 

an Indian child’s tribe when the child is 

a member or eligible for membership in 

more than one tribe? 

5. When must a State court dismiss an 

action? 

6. What are the notice requirements for a 

child custody proceeding involving an 

Indian child? 

7. What time limits and extensions apply? 

8. What is the process for emergency 

removal of an Indian child? 

9. What are the procedures for determining 

improper removal? 

C. Procedures for Making Requests for 

Transfer to Tribal Court 

1. How are petitions for transfer of 

proceeding made? 

2. What are the criteria and procedures for 

ruling on transfer petitions? 

3. How is a determination of ‘‘good cause’’ 

made? 

4. What happens when a petition for 

transfer is made? 

D. Adjudication of Involuntary Placements, 

Adoptions, or Terminations of Parental 

Rights 

1. Who has access to reports or records? 

2. What steps must a party take to petition 

a State court for certain actions involving 

an Indian child? 

3. What are the applicable standards of 

evidence? 

4. Who may serve as a qualified expert 

witness? 

E. Voluntary Proceedings 

1. What actions must an agency and State 

court undertake in voluntary 

proceedings? 

2. How is consent obtained? 

3. What information should the consent 

document contain? 

4. How is withdrawal of consent achieved 

in a voluntary foster care placement? 

5. How is withdrawal of consent to a 

voluntary adoption achieved? 

F. Dispositions 

1. When do the placement preferences 

apply? 

2. What placement preferences apply in 

adoptive placements? 

3. What placement preferences apply in 

foster care or preadoptive placements? 

4. How is a determination for ‘‘good cause’’ 

to depart from placement procedures 

made? 

G. Post-Trial Rights 

1. What is the procedure for petitioning to 

vacate an adoption? 

2. Who can make a petition to invalidate 

an action? 

3. What are the rights of adult adoptees? 

4. When must notice of a change in child’s 

status be given? 

5. What information must States furnish to 

the Bureau of Indian Affairs? 

6. How must the State maintain records? 

Guidelines for State Courts and 

Agencies in Indian Child Custody 

Proceedings 

A. General Provisions 

A.1. What is the purpose of these 

guidelines? 

These guidelines clarify the minimum 

Federal standards, and best practices, 

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’ intent in enacting the statute, 

and the canon of construction that 

statutes enacted for the benefit of 

Indians are to be liberally construed to 

their benefit. In order to fully 

implement ICWA, these guidelines 

should be applied in all proceedings 

and stages of a proceeding in which the 

Act is or becomes applicable. 

A.2. What terms do I need to know? 

Active efforts are intended primarily 

to maintain and reunite an Indian child 

with his or her family or tribal 

community and constitute more than 

reasonable efforts as required by Title 

IV–E of the Social Security Act (42 

U.S.C. 671(a)(15)). Active efforts 

include, for example: 

(1) Engaging the Indian child, the 

Indian child’s parents, the Indian 

child’s extended family members, and 

the Indian child’s custodian(s); 

(2) Taking steps necessary to keep 

siblings together; 

(3) Identifying appropriate services 

and helping the parents to overcome 

barriers, including actively assisting the 

parents in obtaining such services; 

(4) Identifying, notifying, and inviting 

representatives of the Indian child’s 

tribe to participate; 

(5) Conducting or causing to be 

conducted a diligent search for the 

Indian child’s extended family members 

for assistance and possible placement; 

(6) Taking into account the Indian 

child’s tribe’s prevailing social and 

cultural conditions and way of life, and 

requesting the assistance of 

representatives designated by the Indian 

child’s tribe with substantial knowledge 

of the prevailing social and cultural 

standards; 

(7) Offering and employing all 

available and culturally appropriate 

family preservation strategies; 

(8) Completing a comprehensive 

assessment of the circumstances of the 

Indian child’s family, with a focus on 

safe reunification as the most desirable 

goal; 

(9) Notifying and consulting with 

extended family members of the Indian 

child to provide family structure and 

support for the Indian child, to assure 

cultural connections, and to serve as 

placement resources for the Indian 

child; 

(10) Making arrangements to provide 

family interaction in the most natural 

setting that can ensure the Indian 

child’s safety during any necessary 

removal; 

(11) Identifying community resources 

including housing, financial, 

transportation, mental health, substance 

abuse, and peer support services and 

actively assisting the Indian child’s 

parents or extended family in utilizing 

and accessing those resources; 

(12) Monitoring progress and 

participation in services; 

(13) Providing consideration of 

alternative ways of addressing the needs 

of the Indian child’s parents and 

extended family, if services do not exist 

or if existing services are not available; 

(14) Supporting regular visits and trial 

home visits of the Indian child during 

any period of removal, consistent with 

the need to ensure the safety of the 

child; and 

(15) Providing post-reunification 

services and monitoring. 

‘‘Active efforts’’ are separate and 

distinct from requirements of the 

Adoption and Safe Families Act 


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(ASFA), 42 U.S.C. 1305. ASFA’s 

exceptions to reunification efforts do 

not apply to ICWA proceedings. 

Agency means a private State-licensed 

agency or public agency and their 

employees, agents or officials involved 

in and/or seeking to place a child in a 

child custody proceeding. 

Child custody proceeding means and 

includes any proceeding or action that 

involves: 

(1) 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, 

although parental rights have not been 

terminated; 

(2) Termination of parental rights, 

which is any action resulting in the 

termination of the parent-child 

relationship; 

(3) 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 

(4) Adoptive placement, which is the 

permanent placement of an Indian child 

for adoption, including any action 

resulting in a final decree of adoption. 

Continued custody means physical 

and/or legal custody that a parent 

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 and/or legal 

custody 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 any person over the 

age of eighteen, physical presence in a 

place and intent to remain there; 

(2) For an Indian child, the domicile 

of the Indian child’s parents. In the case 

of an Indian child whose parents are not 

married to each other, the domicile of 

the Indian child’s mother. Under the 

principle for determining the domicile 

of an Indian child, it is entirely logical 

that ‘‘[o]n occasion, a child’s domicile of 

origin will be in a place where the child 

has never been.’’ Holyfield, 490 U.S. at 

48. Holyfield notes that tribal 

jurisdiction under 25 U.S.C. 1911(a) was 

not meant to be defeated by the actions 

of individual members of the tribe, 

because Congress was concerned not 

solely about the interests of Indian 

children and families, but also about the 

impact of large numbers of Indian 

children adopted by non-Indians on the 

tribes themselves. Id. at 49. 

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 the age of eighteen 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. 

Imminent physical damage or harm 

means present or impending risk of 

serious bodily injury or death that will 

result in severe harm if safety 

intervention does not occur. 

Indian means any person who is a 

member of an Indian tribe, or who is an 

Alaska Native and a member of a 

Regional Corporation as defined in 43 

CFR part 1606. 

Indian child means any unmarried 

person who is under age eighteen and 

is either: (1) a member of an Indian 

tribe; or (2) eligible for membership in 

an Indian tribe and the biological child 

of a member 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 with which the Indian child 

has more significant contacts. 

Indian Child Welfare Act (ICWA) or 

Act means 25 U.S.C. 1901 et seq. 

Indian custodian means any person 

who has legal custody of an Indian child 

under tribal law or custom or under 

State law, whichever is more favorable 

to the rights of the parent, or to whom 

temporary physical care, custody, and 

control has been transferred by the 

parent of such child. 

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. 

Indian tribe means any Indian tribe, 

band, nation, or other organized group 

or community of Indians recognized as 

eligible for the services provided to 

Indians by the Secretary because of their 

status as Indians, including any Alaska 

Native village as defined in 43 U.S.C. 

1602(c). 

Parent means 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 or custom. It does not include 

an unwed father where paternity has not 

been acknowledged or established. To 

qualify as a parent, an unwed father 

need only take reasonable steps to 

establish or acknowledge paternity. 

Such steps may include acknowledging 

paternity in the action at issue or 

establishing paternity through DNA 

testing. 

Reservation means Indian country as 

defined in 18 U.S.C 1151, including any 

lands, 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, including 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 custodians can regain custody 

simply upon request, without any 

contingencies such as repaying the 

child’s expenses. 

Voluntary placement means a 

placement that either parent has, of his 

or her free will, chosen for the Indian 

child, including private adoptions. 

A.3. When does ICWA apply? 

(a) ICWA applies whenever an Indian 

child is the subject of a State child 

custody proceeding as defined by the 

Act. ICWA also applies to proceedings 

involving status offenses or juvenile 

delinquency proceedings if any part of 

those proceedings results in the need for 

placement of the child in a foster care, 

preadoptive or adoptive placement, or 

termination of parental rights. 

(b) There is no exception to 

application of ICWA based on the socalled ‘‘existing Indian family doctrine.’’ 

Thus, the following non-exhaustive list 

of factors should not be considered in 

determining whether ICWA is 

applicable: the extent to which the 

parent or Indian child participates in or 

observes tribal customs, votes in tribal 

elections or otherwise participates in 

tribal community affairs, contributes to 

tribal or Indian charities, subscribes to 

tribal newsletters or other periodicals of 

special interest in Indians, participates 

in Indian religious, social, cultural, or 

political events, or maintains social 

contacts with other members of the 

tribe; the relationship between the 

Indian child and his/her Indian parents; 


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the extent of current ties either parent 

has to the tribe; whether the Indian 

parent ever had custody of the child; 

and the level of involvement of the tribe 

in the State court proceedings. 

(c) Agencies and State courts, in every 

child custody proceeding, must ask 

whether the child is or could be an 

Indian child and conduct an 

investigation into whether the child is 

an Indian child. Even in those cases in 

which the child is not removed from the 

home, such as when an agency opens an 

investigation or the court orders the 

family to engage in services to keep the 

child in the home as part of a diversion, 

differential, alternative response or 

other program, agencies and courts 

should follow the verification and 

notice provisions of these guidelines. 

Providing notice allows tribes to 

intervene as early as possible in a child 

custody proceeding and provides an 

opportunity for the tribe to bring 

resources to bear to assist the family in 

preventing a breakup of the family. 

(d) If there is any reason to believe the 

child is an Indian child, the agency and 

State court must treat the child as an 

Indian child, unless and until it is 

determined that the child is not a 

member or is not eligible for 

membership in an Indian tribe. 

(e) ICWA and these guidelines or any 

associated Federal guidelines do not 

apply to: 

(1) Tribal court proceedings; 

(2) Placements based upon an act by 

the Indian child which, if committed by 

an adult, would be deemed a criminal 

offense; or 

(3) An award, in a divorce proceeding, 

of custody of the Indian child to one of 

the parents. 

(f) Voluntary placements that do not 

operate to prohibit the child’s parent or 

Indian custodian from regaining custody 

of the child upon demand are not 

covered by the Act. 

(1) Such placements should be made 

pursuant to a written agreement, and the 

agreement should state explicitly the 

right of the parent or Indian custodian 

to regain custody of the child upon 

demand. 

(2) Nevertheless, it is a best practice 

to follow the procedures in these 

guidelines to determine whether a child 

is an Indian child and to notify the tribe. 

(g) Voluntary placements in which a 

parent consents to a foster care 

placement or seeks to permanently 

terminate his or her rights or to place 

the child in a preadoptive or adoptive 

placement are covered by the Act. 

A.4. How do I contact a tribe under 

these guidelines? 

To contact a tribe to provide notice or 

obtain information or verification under 

these Guidelines, you should direct the 

notice or inquiry as follows: 

(1) Many tribes designate an agent for 

receipt of ICWA notices. The Bureau of 

Indian Affairs 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. 

(2) For tribes without a designated 

tribal agent for service of ICWA notice, 

contact the tribe(s) to be directed to the 

appropriate individual or office. 

(3) If you do not have accurate contact 

information for the tribe(s) or the tribe(s) 

contacted fail(s) to respond to written 

inquiries, you may seek assistance in 

contacting the Indian tribe(s) from the 

Bureau of Indian Affairs’ Regional 

Office and/or Central Office in 

Washington DC (see www.bia.gov). 

A.5. How do these guidelines interact 

with State laws? 

(a) These guidelines provide 

minimum Federal standards and best 

practices to ensure compliance with 

ICWA and should be applied in all child 

custody proceedings in which the Act 

applies. 

(b) In any child custody proceeding 

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 

that the State court must apply the 

higher standard. 

B. Pretrial Requirements 

B.1. When does the requirement for 

active efforts begin? 

(a) The requirement to engage in 

‘‘active efforts’’ begins from the moment 

the possibility arises that an agency case 

or investigation may result in the need 

for the Indian child to be placed outside 

the custody of either parent or Indian 

custodian in order to prevent removal. 

(b) Active efforts to prevent removal 

of the child must be conducted while 

investigating whether the child is a 

member of the tribe, is eligible for 

membership in the tribe, or whether a 

biological parent of the child is or is not 

a member of a tribe. 

B.2. What actions must an agency and 

State court undertake in order to 

determine whether a child is an Indian 

child? 

(a) Agencies must ask whether there 

is reason to believe a child that is 

subject to a child custody proceeding is 

an Indian child. If there is reason to 

believe that the child is an Indian child, 

the agency must obtain verification, in 

writing, from all tribes in which it is 

believed that the child is a member or 

eligible for membership, as to whether 

the child is an Indian child. 

(b) State courts must ask, as a 

threshold question at the start of any 

State court child custody proceeding, 

whether there is reason to believe the 

child who is the subject of the 

proceeding is an Indian child by asking 

each party to the case, including the 

guardian ad litem and the agency 

representative, to certify on the record 

whether they have discovered or know 

of any information that suggests or 

indicates the child is an Indian child. 

(1) In requiring this certification, the 

court may require the agency to provide: 

(i) Genograms or ancestry charts for 

both parents, including all names 

known (maiden, married and former 

names or aliases); current and former 

addresses of the child’s parents, 

maternal and paternal grandparents and 

great grandparents or Indian custodians; 

birthdates; places of birth and death; 

tribal affiliation including all known 

Indian ancestry for individuals listed on 

the charts, and/or other identifying 

information; and/or 

(ii) The addresses for the domicile 

and residence of the child, his or her 

parents, or the Indian custodian and 

whether either parent or Indian 

custodian is domiciled on or a resident 

of an Indian reservation or in a 

predominantly Indian community. 

(2) If there is reason to believe the 

child is an Indian child, the court must 

confirm that the agency used active 

efforts to work with all tribes of which 

the child may be a member to verify 

whether the child is in fact a member or 

eligible for membership in any tribe, 

under paragraph (a). 

(c) An agency or court has reason to 

believe that a child involved in a child 

custody proceeding is an Indian child if: 

(1) Any party to the proceeding, 

Indian tribe, Indian organization or 

public or private agency informs the 

agency or court that the child is an 

Indian child; 

(2) Any agency involved in child 

protection services or family support 

has discovered information suggesting 

that the child is an Indian child; 

(3) The child who is the subject of the 

proceeding gives the agency or court 

reason to believe he or she is an Indian 

child; 

(4) The domicile or residence of the 

child, parents, or the Indian custodian 

is known by the agency or court to be, 

or is shown to be, on an Indian 


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reservation or in a predominantly 

Indian community; or 

(5) An employee of the agency or 

officer of the court involved in the 

proceeding has knowledge that the child 

may be an Indian child. 

(d) In seeking verification of the 

child’s status, in a voluntary placement 

proceeding where a consenting parent 

evidences a desire for anonymity, the 

agency or court must keep relevant 

documents confidential and under seal. 

A request for anonymity does not 

relieve the obligation to obtain 

verification from the tribe(s) or to 

provide notice. 

B.3. Who makes the determination as to 

whether a child is a member of a tribe? 

(a) Only the Indian tribe(s) of which 

it is believed a biological parent or the 

child is a member or eligible for 

membership may make the 

determination whether the child is a 

member of the tribe(s), is eligible for 

membership in the tribe(s), or whether 

a biological parent of the child is a 

member of the tribe(s). 

(b) The determination by a tribe of 

whether a child is a member, is eligible 

for membership, or whether a biological 

parent is or is not a member of that 

tribe, is solely within the jurisdiction 

and authority of the tribe. 

(c) No other entity or person may 

authoritatively make the determination 

of whether a child is a member of the 

tribe or is eligible for membership in the 

tribe. 

(1) There is no requirement that the 

child maintain a certain degree of 

contacts with the tribe or for a certain 

blood quantum or degree of Indian 

blood. 

(2) A tribe need not formally enroll its 

members for a child to be a member or 

eligible for membership. In some tribes, 

formal enrollment is not required for 

tribal membership. Some tribes do not 

have written rolls and others have rolls 

that list only persons that were members 

as of a certain date. See United States 

v. Broncheau, 597 F.2d 1260, 1263 (9th 

Cir. 1979). The only relevant factor is 

whether the tribe verifies that the child 

is a member or eligible for membership. 

(d) The State court may not substitute 

its own determination regarding a 

child’s membership or eligibility for 

membership in a tribe or tribes. 

B.4. What is the procedure for 

determining an Indian child’s tribe 

when the child is a member or eligible 

for membership in more than one tribe? 

(a) Agencies are required to notify all 

tribes, of which the child may be a 

member or eligible for membership, that 

the child is involved in a child custody 

proceeding. The notice should specify 

the other tribe or tribes of which the 

child may be a member or eligible for 

membership. 

(b) If the Indian child is a member or 

eligible for membership in only one 

tribe, that tribe should be designated as 

the Indian child’s tribe. 

(c) If an Indian child is a member or 

eligible for membership in more than 

one tribe, ICWA requires that the Indian 

tribe with which the Indian child has 

the more significant contacts be 

designated as the Indian child’s tribe. 

(1) In determining significant 

contacts, the following may be 

considered: 

(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 custodial 

parent or Indian custodian; and 

(iv) Interest asserted by each tribe in 

response to the notice that the child is 

involved in a child custody proceeding; 

(d) When an Indian child is already a 

member of a tribe, but is also eligible for 

membership in another tribe, deference 

should be given to the tribe in which the 

Indian child is a member, unless 

otherwise agreed to by the tribes. 

However, if the Indian child is not a 

member of any tribe, an opportunity 

should be provided to allow the tribes 

to determine which of them should be 

designated as the Indian child’s tribe. 

(i) If the tribes are able to reach an 

agreement, the agreed upon tribe should 

be designated as the Indian child’s tribe. 

(ii) If the tribes do not agree, the 

following factors should be considered 

in designating the Indian child’s tribe: 

(A) The preference of the parents or 

extended family members who are 

likely to become foster care or adoptive 

placements; and/or 

(B) Tribal membership of custodial 

parent or Indian custodian; and/or 

(C) If applicable, length of past 

domicile or residence on or near the 

reservation of each tribe; and/or 

(D) Whether there has been a previous 

adjudication with respect to the child by 

a court of one of the tribes; and/or 

(E) Self-identification by the child; 

and/or 

(F) Availability of placements. 

(iii) In the event the child is eligible 

for membership in a tribe but is not yet 

a member of any tribe, the agency 

should take the steps necessary to 

obtain membership for the child in the 

tribe that is designated as the Indian 

child’s tribe. 

(3) Once an Indian tribe is designated 

as the child’s Indian tribe, all tribes 

which received notice of the child 

custody proceeding must be notified in 

writing of the determination and a copy 

of that document must be filed with the 

court and sent to each party to the 

proceeding and to each person or 

governmental agency that received 

notice of the proceeding. 

(4) A determination of the Indian 

child’s tribe for purposes of ICWA and 

these guidelines does not constitute a 

determination for any other purpose or 

situation. 

(d) The tribe designated as the Indian 

child’s tribe may authorize another tribe 

to act as a representative for the tribe in 

a child custody case, including, for 

example, having the representative tribe 

perform home studies or expert witness 

services for the Indian child’s tribe. 

B.5. When must a State court dismiss an 

action? 

Subject to B.8 (emergency 

procedures), the following limitations 

on a State court’s jurisdiction apply: 

(a) The court must dismiss any child 

custody proceeding as soon as the court 

determines that it lacks jurisdiction. 

(b) The court must make a 

determination of 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 dismiss the State court 

proceedings, the agency must notify the 

tribe of the dismissal based on the 

tribe’s exclusive jurisdiction, and the 

agency must transmit all available 

information regarding the Indian child 

custody proceeding to the tribal court. 

(c) If the Indian child has been 

domiciled or previously resided on an 

Indian reservation, the State court must 

contact the tribal court to determine 

whether the child is a ward of the tribal 

court. If the child is a ward of a tribal 

court, the State court must dismiss the 

State court proceedings, the agency 

must notify the tribe of the dismissal, 

and the agency must transmit all 

available information regarding the 

Indian child custody proceeding to the 

tribal court. 

B.6. What are the notice requirements 

for a child custody proceeding involving 

an Indian child? 

(a) When an agency or court knows or 

has reason to know that the subject of 

an involuntary child custody 

proceeding is an Indian child, the 

agency or court must send notice of 

each such proceeding (including but not 

limited to a temporary custody hearing, 

any removal or foster care placement, 

any adoptive placement, or any 

termination of parental or custodial 


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rights) by registered mail with return 

receipt requested to: 

(1) Each tribe where the child may be 

a member or eligible for membership; 

(2) The child’s parents; and 

(3) If applicable, the Indian custodian. 

(b) Notice may be sent via personal 

service or electronically in addition to 

the methods required by the Act, but 

such alternative methods do not replace 

the requirement for notice to be sent by 

registered mail with return receipt 

requested. 

(c) Notice must be in clear and 

understandable language and include 

the following: 

(1) Name of the child, the child’s 

birthdate and birthplace; 

(2) Name of each Indian tribe(s) in 

which the child is a member or may be 

eligible for membership; 

(3) A copy of the petition, complaint 

or other document by which the 

proceeding was initiated; 

(4) Statements setting out: 

(i) The name of the petitioner and 

name and address of petitioner’s 

attorney; 

(ii) The right of the parent or Indian 

custodian 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 a parental right. 

(iv) If the Indian parent(s) or, if 

applicable, Indian custodian(s) is unable 

to afford counsel based on a 

determination of indigency by the court, 

counsel will be appointed to represent 

the parent or Indian custodian where 

authorized by State law. 

(v) The right to be granted, upon 

request, a specific amount of additional 

time (up to 20 additional days) to 

prepare for the proceedings due to 

circumstances of the particular case. 

(vi) The right to petition the court for 

transfer of the proceeding to tribal court 

under 25 U.S.C. 1911, absent objection 

by either parent: Provided, that such 

transfer is subject to declination by the 

tribal court. 

(vii) The mailing addresses and 

telephone numbers of the court and 

information related to all parties to the 

proceeding and individuals notified 

under this section. 

(viii) The potential legal 

consequences of the proceedings on the 

future custodial and parental rights of 

the Indian parents or Indian custodians. 

(d) In order to assist the Indian tribe(s) 

in making a determination regarding 

whether the child is a member or 

eligible for membership, the agency or 

court should include additional 

information in the notice, such as: 

(1) Genograms or ancestry charts for 

both parents, including all names 

known (maiden, married and former 

names or aliases); current and former 

addresses of the child’s parents, 

maternal and paternal grandparents and 

great grandparents or Indian custodians; 

birthdates; places of birth and death; 

tribal affiliation including all known 

Indian ancestry for individuals listed on 

the charts, and/or other identifying 

information; and/or 

(2) The addresses for the domicile and 

residence of the child, his or her 

parents, or the Indian custodian and 

whether either parent or Indian 

custodian is domiciled on or a resident 

of an Indian reservation or in a 

predominantly Indian community. 

(3) In the event that a parent has 

requested anonymity, the agency and 

court must take steps to keep 

information related to the parent 

confidential and sealed from disclosure. 

(e) If the identity or location of the 

Indian parents, Indian custodians or 

tribes in which the Indian child is a 

member or eligible for membership 

cannot be ascertained, but there is 

reason to believe 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 (see section B.6.(c) of these 

guidelines regarding notice 

requirements). 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) Because child custody proceedings 

are usually conducted on a confidential 

basis, information contained in the 

notice should be kept confidential to the 

extent possible. 

(g) The original or a copy of each 

notice sent under this section should be 

filed with the court together with any 

return receipts or other proof of service. 

(h) If a parent or Indian custodian 

appears in court without an attorney, 

the court must inform him or her of the 

right to appointed counsel, the right to 

request that the proceeding be 

transferred to tribal court, the right to 

object to such transfer, the right to 

request additional time to prepare for 

the proceeding and the right (if the 

parent or Indian custodian is not 

already a party) to intervene in the 

proceedings. 

(i) If the court or an agency has reason 

to believe that a parent or Indian 

custodian possesses limited English 

proficiency and is therefore not likely to 

understand the contents of the notice, 

the court or agency must, at no cost, 

provide a translated version of the 

notice or have the notice read and 

explained in a language that the parent 

or Indian custodian understands. To 

secure such translation or interpretation 

support, a court or agency should 

contact the Indian child’s tribe or the 

local BIA agency for assistance in 

locating and obtaining the name of a 

qualified translator or interpreter. 

(j) In voluntary proceedings, notice 

should also be sent in accordance with 

this section because the Indian tribe 

might have exclusive jurisdiction and/or 

the right to intervene. Further, notice to 

and involvement of the Indian tribe in 

the early stages of the proceedings aids 

the agency and court in satisfying their 

obligations to determine whether the 

child is an Indian child and in 

complying with 25 U.S.C. 1915. 

(k) If the child is transferred 

interstate, regardless of whether the 

Interstate Compact on the Placement of 

Children (ICPC) applies, both the 

originating State court and receiving 

State court must provide notice to the 

tribe(s) and seek to verify whether the 

child is an Indian child. 

(l) The notice requirement includes 

providing responses to requests for 

additional information, where available, 

in the event that a tribe indicates that 

such information is necessary to 

determine whether a child is an Indian 

child. 

B.7. What time limits and extensions 

apply? 

(a) No hearings regarding decisions 

for the foster care or termination of 

parental rights may begin until the 

waiting periods to which the parents or 

Indian custodians and to which the 

Indian child’s tribe are entitled have 

passed. Additional extensions of time 

may also be granted beyond the 

minimum required by the Act. 

(b) A tribe, parent or Indian custodian 

entitled to notice of the pendency of a 

child custody proceeding has a right, 

upon request, to be granted an 

additional 20 days from the date upon 

which notice was received in 

accordance with 25 U.S.C. 1912(a) to 

prepare for participation in the 

proceeding. 

(c) The proceeding may not begin 

until all of the following dates have 

passed: 

(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 in 

accordance with 25 U.S.C. 1912(a); 

(2) 10 days after the Indian child’s 

tribe (or the Secretary if the Indian 

child’s tribe is unknown to the party 


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seeking placement) has received notice 

in accordance with 25 U.S.C. 1912(a); 

(3) 30 days after the parent or Indian 

custodian has received notice in 

accordance with 25 U.S.C. 1912(a), if 

the parent or Indian custodian has 

requested an additional 20 days to 

prepare for the proceeding; and 

(4) 30 days after the Indian child’s 

tribe has received notice in accordance 

with 25 U.S.C. 1912(a), if the Indian 

child’s tribe has requested an additional 

20 days to prepare for the proceeding. 

(d) The court should allow, if it 

possesses the capability, alternative 

methods of participation in State court 

proceedings by family members and 

tribes, such as participation by 

telephone, videoconferencing, or other 

methods. 

B.8. What is the process for the 

emergency removal of an Indian child? 

(a) The emergency removal and 

emergency placement of an Indian child 

in a foster home or institution under 

applicable State law is allowed only as 

necessary to prevent imminent physical 

damage or harm to the child. This 

requirement applies to all Indian 

children regardless of whether they are 

domiciled or reside on a reservation. 

This does not, however, authorize a 

State to remove a child from a 

reservation where a tribe exercises 

exclusive jurisdiction. 

(b) Any emergency removal or 

emergency placement of any Indian 

child under State law must be as short 

as possible. Each involved agency or 

court must: 

(1) Diligently investigate and 

document whether the removal or 

placement is proper and continues to be 

necessary to prevent imminent physical 

damage or harm to the child; 

(2) Promptly hold a hearing to hear 

evidence and evaluate whether the 

removal or placement continues to be 

necessary whenever new information is 

received or assertions are made that the 

emergency situation has ended; and 

(3) Immediately terminate the 

emergency removal or placement once 

the court possesses sufficient evidence 

to determine that the emergency has 

ended. 

(c) If the agency that conducts an 

emergency removal of a child whom the 

agency knows or has reason to know is 

an Indian child, the agency must: 

(1) Treat the child as an Indian child 

until the court determines that the child 

is not an Indian child; 

(2) Conduct active efforts to prevent 

the breakup of the Indian family as early 

as possible, including, if possible, before 

removal of the child; 

(3) Immediately take and document 

all practical steps to confirm whether 

the child is an Indian child and to verify 

the Indian child’s tribe; 

(4) Immediately notify the child’s 

parents or Indian custodians and Indian 

tribe of the removal of the child; 

(5) Take all practical steps to notify 

the child’s parents or Indian custodians 

and Indian tribe about any hearings 

regarding the emergency removal or 

emergency placement of the child; and 

(6) Maintain records that detail the 

steps taken to provide any required 

notifications under section B.6 of these 

guidelines. 

(d) A petition for a court order 

authorizing emergency removal or 

continued emergency physical custody 

must be accompanied by an affidavit 

containing 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) If such persons are unknown, a 

detailed explanation of what efforts 

have been made to locate them, 

including notice to the appropriate 

Bureau of Indian Affairs Regional 

Director (see www.bia.gov); 

(4) Facts necessary to determine the 

residence and the domicile of the Indian 

child; 

(5) If either the residence or domicile 

is believed to be on an Indian 

reservation, the name of the reservation; 

(6) The tribal affiliation of the child 

and of the parents and/or Indian 

custodians; 

(7) A specific and detailed account of 

the circumstances that led the agency 

responsible for the emergency removal 

of the child to take that action; 

(8) 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 transfer the child to the 

tribe’s jurisdiction; 

(9) A statement of the specific active 

efforts that have been taken to assist the 

parents or Indian custodians so the 

child may safely be returned to their 

custody; and 

(10) 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. 

(e) At any court hearing regarding the 

emergency removal or emergency 

placement of an Indian child, the court 

must determine whether the removal or 

placement is no longer necessary to 

prevent imminent physical damage or 

harm to the child. The court should 

accept and evaluate all information 

relevant to the agency’s determination 

provided by the child, the child’s 

parents, the child’s Indian custodians, 

the child’s tribe or any participants in 

the hearing. 

(f) Temporary emergency custody 

should not be continued for more than 

30 days. Temporary emergency custody 

may be continued for more than 30 days 

only if: 

(1) A hearing, noticed in accordance 

with these guidelines, is held and 

results in a determination by the court, 

supported by clear and convincing 

evidence and the testimony of at least 

one qualified expert witness, that 

custody of the child by the parent or 

Indian custodian is likely to result in 

imminent physical damage or harm to 

the child; or 

(2) Extraordinary circumstances exist. 

(g) The emergency removal or 

placement must terminate as soon as the 

imminent physical damage or harm to 

the child which resulted in the 

emergency removal or placement no 

longer exists, or, if applicable, as soon 

as the tribe exercises jurisdiction over 

the case, whichever is earlier. 

(h) Once an agency or court has 

terminated the emergency removal or 

placement, it must expeditiously: 

(1) Return the child to the parent or 

Indian custodian within one business 

day; or 

(2) Transfer the child to the 

jurisdiction of the appropriate Indian 

tribe if the child is a ward of a tribal 

court or a resident of or domiciled on 

a reservation; or 

(3) Initiate a child custody proceeding 

subject to the provisions of the Act and 

these guidelines. 

(i) The court should allow, if it 

possesses the capability, alternative 

methods of participation in State court 

proceedings by family members and 

tribes, such as participation by 

telephone, videoconferencing, or other 

methods. 

B.9. What are the procedures for 

determining improper removal? 

(a) If, in the course of any Indian 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 immediately stay the 

proceeding until a determination can be 

made on the question of improper 

removal or retention, and such 


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determination must be conducted 

expeditiously. 

(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 

parents or Indian custodian, unless 

returning the child to his parent or 

custodian would subject the child to 

imminent physical damage or harm. 

C. Procedures for Making Requests for 

Transfer to Tribal Court 

C.1. How are petitions for transfer of 

proceeding made? 

(a) Either parent, the Indian 

custodian, or the Indian child’s tribe 

may request, orally on the record or in 

writing, that the State court transfer 

each distinct Indian child custody 

proceeding to the tribal court of the 

child’s tribe. 

(b) The right to request a transfer 

occurs with each proceeding. For 

example, a parent may request a transfer 

to tribal court during the first 

proceeding for foster placement and/or 

at a proceeding to determine whether to 

continue foster placement, and/or at a 

later proceeding, for example at a 

hearing for termination of parental 

rights. 

(c) The right to request a transfer is 

available at any stage of an Indian child 

custody proceeding, including during 

any period of emergency removal. 

(d) The court should allow, if 

possible, alternative methods of 

participation in State court proceedings 

by family members and tribes, such as 

participation by telephone, 

videoconferencing, or other methods. 

C.2. What are the criteria and 

procedures for ruling on transfer 

petitions? 

(a) Upon receipt of a petition to 

transfer by a parent, Indian custodian or 

the Indian child’s tribe, the State court 

must transfer the case unless any of the 

following criteria are met: 

(1) Either parent objects to such 

transfer; 

(2) The tribal court declines the 

transfer; or 

(3) The court determines that good 

cause exists for denying the transfer. 

(b) To minimize delay, the court 

should expeditiously provide all records 

related to the proceeding to the tribal 

court. 

C.3. How is a determination of ‘‘good 

cause’’ made? 

(a) If the State court believes, or any 

party asserts, that good cause not to 

transfer exists, the reasons for such 

belief or assertion must be stated on the 

record or in writing and made available 

to the parties who are petitioning for 

transfer. 

(b) Any party to the 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 may not consider 

whether the case is at an advanced stage 

or whether transfer would result in a 

change in the placement of the child 

because the Act created concurrent, but 

presumptively, tribal jurisdiction over 

proceedings involving children not 

residing or domiciled on the 

reservation, and seeks to protect, not 

only the rights of the Indian child as an 

Indian, but the rights of Indian 

communities and tribes in retaining 

Indian children. Thus, whenever a 

parent or tribe seeks to transfer the case 

it is presumptively in the best interest 

of the Indian child, consistent with the 

Act, to transfer the case to the 

jurisdiction of the Indian tribe. 

(d) In addition, in determining 

whether there is good cause to deny the 

transfer, the court may not consider: 

(1) The Indian child’s contacts with 

the tribe or reservation; 

(2) Socio-economic conditions or any 

perceived inadequacy of tribal or 

Bureau of Indian Affairs social services 

or judicial systems; or 

(3) The tribal court’s prospective 

placement for the Indian child. 

(e) The burden of establishing good 

cause not to transfer is on the party 

opposing the transfer. 

C.4. What happens when a petition for 

transfer is made? 

(a) Upon receipt of a transfer petition 

the State court must promptly notify the 

tribal court in writing of the transfer 

petition and request a response 

regarding whether the tribal court 

wishes to decline the transfer. The 

notice should specify how much time 

the tribal court has to make its decision; 

provided that the tribal court has at least 

20 days from the receipt of notice of a 

transfer petition to decide whether to 

accept or decline the transfer. 

(b) The tribal court should inform the 

State court of its decision to accept or 

decline jurisdiction within the time 

required or may request additional time; 

provided that the reasons for additional 

time are explained. 

(c) If the tribal court accepts the 

transfer, the State court should 

promptly provide the tribal court with 

all court records. 

D. Adjudication of Involuntary 

Placements, Adoptions, or Terminations 

or Terminations of Parental Rights 

D.1. Who has access to reports or 

records? 

(a) The court must inform each party 

to a foster care placement or termination 

of parental rights proceeding under 

State law involving an Indian child of 

his or her right to timely examination of 

all reports or other documents filed with 

the court and all files upon which any 

decision with respect to such action 

may be based. 

(b) Decisions of the court may be 

based only upon reports, documents or 

testimony presented on the record. 

D.2. What steps must a party take to 

petition a State court for certain actions 

involving an Indian child? 

(a) Any party petitioning a State court 

for foster care placement or termination 

of parental rights to an Indian child 

must demonstrate to the court that prior 

to, and until the commencement of, the 

proceeding, active efforts have been 

made to avoid the need to remove the 

Indian child from his or her parents or 

Indian custodians and show that those 

efforts have been unsuccessful. 

(b) Active efforts must be documented 

in detail and, to the extent possible, 

should involve and use the available 

resources of the extended family, the 

child’s Indian tribe, Indian social 

service agencies and individual Indian 

care givers. 

D.3. What are the applicable standards 

of evidence? 

(a) The court may not issue an order 

effecting 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 with the child’s 

parents or Indian custodian is likely to 

result in serious harm to the child. 

(b) The court may not order a 

termination of parental rights unless the 

court’s order is supported by evidence 

beyond a reasonable doubt, supported 

by the testimony of one or more 

qualified expert witnesses, that 

continued custody of the child by the 

parent or Indian custodian is likely to 

result in serious harm to the child. 

(c) Clear and convincing evidence 

must show a causal relationship 

between the existence of particular 

conditions in the home that are likely to 

result in serious emotional or physical 

damage to the particular child who is 

the subject of the proceeding. Evidence 

that shows only the existence of 


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community or family poverty or 

isolation, single parenthood, custodian 

age, crowded or inadequate housing, 

substance abuse, or nonconforming 

social behavior does not by itself 

constitute clear and convincing 

evidence that continued custody is 

likely to result in serious emotional or 

physical damage to the child. 

D.4. Who may serve as a qualified 

expert witness? 

(a) A qualified expert witness should 

have specific knowledge of the Indian 

tribe’s culture and customs. 

(b) Persons with the following 

characteristics, in descending order, are 

presumed to meet the requirements for 

a qualified expert witness: 

(1) A member of the Indian child’s 

tribe who is recognized by the tribal 

community as knowledgeable in tribal 

customs as they pertain to family 

organization and childrearing practices. 

(2) A member of another tribe who is 

recognized to be a qualified expert 

witness by the Indian child’s tribe based 

on their knowledge of the delivery of 

child and family services to Indians and 

the Indian child’s tribe. 

(3) A layperson who is recognized by 

the Indian child’s tribe as having 

substantial experience in the delivery of 

child and family services to Indians, 

and knowledge of prevailing social and 

cultural standards and childrearing 

practices within the Indian child’s tribe. 

(4) A professional person having 

substantial education and experience in 

the area of his or her specialty who can 

demonstrate knowledge of the 

prevailing social and cultural standards 

and childrearing practices within the 

Indian child’s tribe. 

(c) The court or any party may request 

the assistance of the Indian child’s tribe 

or the Bureau of Indian Affairs agency 

serving the Indian child’s tribe in 

locating persons qualified to serve as 

expert witnesses. 

E. Voluntary Proceedings 

E.1. What actions must an agency and 

State court undertake in voluntary 

proceedings? 

(a) Agencies and State courts must ask 

whether a child is an Indian child in 

any voluntary proceeding under 

sections B.2. to B.4. of these guidelines. 

(b) Agencies and State courts should 

provide the Indian tribe with notice of 

the voluntary child custody 

proceedings, including applicable 

pleadings or executed consents, and 

their right to intervene under section 

B.6. of these guidelines. 

E.2. How is consent to termination of 

parental rights, foster care placement or 

adoption obtained? 

(a) A voluntary termination of 

parental rights, foster care placement or 

adoption must be executed in writing 

and recorded before a court of 

competent jurisdiction. 

(b) Prior to accepting the consent, the 

court must explain the consequences of 

the consent in detail, such as any 

conditions or timing limitations for 

withdrawal of consent and, if 

applicable, the point at which such 

consent is irrevocable. 

(c) A certificate of the court must 

accompany a written consent and must 

certify that the terms and consequences 

of the consent were explained in detail 

in 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) Execution of consent need not be 

made in open court where 

confidentiality is requested or indicated. 

(e) A consent given prior to or within 

10 days after birth of the Indian child is 

not valid. 

E.3. What information should a consent 

document contain? 

(a) The consent document must 

contain the name and birthdate of the 

Indian child, the name of the Indian 

child’s tribe, identifying tribal 

enrollment number, if any, or other 

indication of the child’s membership in 

the tribe, and the name and address of 

the consenting parent or Indian 

custodian. If there are any conditions to 

the consent, the consent document must 

clearly set out the conditions. 

(b) A consent to foster care placement 

should contain, in addition to the 

information specified in subsection (a), 

the name and address of the person or 

entity by or through whom the 

placement was arranged, if any, or the 

name and address of the prospective 

foster parents, if known at the time. 

E.4. How is withdrawal of consent 

achieved in a voluntary foster care 

placement? 

(a) Withdrawal of consent must be 

filed in the same court where the 

consent document was executed. 

(b) When a parent or Indian custodian 

withdraws consent to foster care 

placement, the child must be returned 

to that parent or Indian custodian 

immediately. 

E.5. How is withdrawal of consent to a 

voluntary adoption achieved? 

(a) A consent to termination of 

parental rights or adoption may be 

withdrawn by the parent at any time 

prior to entry of a final decree of 

voluntary termination or adoption, 

whichever occurs later. To withdraw 

consent, the parent must file, in the 

court where the consent is filed, an 

instrument executed under oath 

asserting his or her intention to 

withdraw such consent. 

(b) The clerk of the court in which the 

withdrawal of consent is filed must 

promptly notify the party by or through 

whom any preadoptive or adoptive 

placement has been arranged of such 

filing and the child must be returned to 

the parent or Indian custodian as soon 

as practicable. 

F. Dispositions 

F.1. When do the placement preferences 

apply? 

(a) In any preadoptive, adoptive or 

foster care placement of an Indian child, 

the Act’s placement preferences apply; 

except that, if the Indian child’s tribe 

has established by resolution a different 

order of preference than that specified 

in the Act, the agency or court effecting 

the placement must follow the tribe’s 

placement preferences. 

(b) The agency seeking a preadoptive, 

adoptive or foster care placement of an 

Indian child must always follow the 

placement preferences. If the agency 

determines that any of the preferences 

cannot be met, the agency must 

demonstrate through clear and 

convincing evidence that a diligent 

search has been conducted to seek out 

and identify placement options that 

would satisfy the placement preferences 

specified in sections F.2. or F.3. of these 

guidelines, and explain why the 

preferences could not be met. A search 

should include notification about the 

placement hearing and an explanation 

of the actions that must be taken to 

propose an alternative placement to: 

(1) The Indian child’s parents or 

Indian custodians; 

(2) All of the known, or reasonably 

identifiable, members of the Indian 

child’s extended family members; 

(3) The Indian child’s tribe; 

(4) In the case of a foster care or 

preadoptive placement: 

(i) All foster homes licensed, 

approved, or specified by the Indian 

child’s tribe; and 

(ii) All Indian foster homes located in 

the Indian child’s State of domicile that 

are licensed or approved by any 

authorized non-Indian licensing 

authority. 

(c) Where there is a request for 

anonymity, the court should consider 

whether additional confidentiality 

protections are warranted, but a request 

for anonymity does not relieve the 


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agency or the court of the obligation to 

comply with the placement preferences. 

(d) Departure from the placement 

preferences may occur only after the 

court has made a determination that 

good cause exists to place the Indian 

child with someone who is not listed in 

the placement preferences. 

(e) Documentation of each 

preadoptive, adoptive or foster care 

placement of an Indian child under 

State law must be provided to the State 

for maintenance at the agency. Such 

documentation must include, at a 

minimum: the petition or complaint; all 

substantive orders entered in the 

proceeding; the complete record of, and 

basis for, the placement determination; 

and, if the placement deviates from the 

placement preferences, a detailed 

explanation of all efforts to comply with 

the placement preferences and the court 

order authorizing departure from the 

placement preferences. 

F.2. What placement preferences apply 

in adoptive placements? 

(a) In any adoptive placement of an 

Indian child under State law, preference 

must be given in descending order, as 

listed below, to placement of the child 

with: 

(1) A member of the child’s extended 

family; 

(2) Other members of the Indian 

child’s tribe; or 

(3) Other Indian families, including 

families of unwed individuals. 

(b) The court should, where 

appropriate, also consider the 

preference of the Indian child or parent. 

F.3. What placement preferences apply 

in foster care or preadoptive 

placements? 

In any foster care or preadoptive 

placement of an Indian child: 

(a) The child must be placed in the 

least restrictive setting that: 

(1) Most approximates a family; 

(2) Allows his or her special needs to 

be met; and 

(3) Is in reasonable proximity to his or 

her home, extended family, and/or 

siblings. 

(b) 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, licensed, approved 

or specified by the Indian child’s tribe, 

whether on or off the reservation; 

(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. 

F.4. How is a determination for ‘‘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 such belief or 

assertion must be stated on the record 

or in writing and made available to the 

parties to the proceeding and the Indian 

child’s tribe. 

(b) The party seeking departure from 

the preferences bears the burden of 

proving by clear and convincing 

evidence the existence of ‘‘good cause’’ 

to deviate from the placement 

preferences. 

(c) A determination of good cause to 

depart from the placement preferences 

must be based on one or more of the 

following considerations: 

(1) The request of the parents, if both 

parents attest that they have reviewed 

the placement options that comply with 

the order of preference. 

(2) The request of the child, if the 

child is able to understand and 

comprehend the decision that is being 

made. 

(3) The extraordinary physical or 

emotional needs of the child, such as 

specialized treatment services that may 

be unavailable in the community where 

families who meet the criteria live, as 

established by testimony of a qualified 

expert witness; provided that 

extraordinary physical or emotional 

needs of the child does not include 

ordinary bonding or attachment that 

may have occurred as a result of a 

placement or the fact that the child has, 

for an extended amount of time, been in 

another placement that does not comply 

with the Act. The good cause 

determination does not include an 

independent consideration of the best 

interest of the Indian child because the 

preferences reflect the best interests of 

an Indian child in light of the purposes 

of the Act. 

(4) The unavailability of a placement 

after a showing by the applicable agency 

in accordance with section F.1., and a 

determination by the court that active 

efforts have been made to find 

placements meeting the preference 

criteria, but none have been located. For 

purposes of this analysis, a placement 

may not be considered unavailable if the 

placement conforms to the prevailing 

social and cultural standards of the 

Indian community in which the Indian 

child’s parent or extended family 

resides or with which the Indian child’s 

parent or extended family members 

maintain social and cultural ties. 

(d) The court should consider only 

whether a placement in accordance with 

the preferences meets the physical, 

mental and emotional needs of the 

child; and may not depart from the 

preferences based on the socioeconomic status of any placement 

relative to another placement. 

G. Post-Trial Rights 

G.1. What is the procedure for 

petitioning to vacate an adoption? 

(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, a parent who executed a 

consent to termination of paternal rights 

or adoption of that child may petition 

the court in which the final adoption 

decree was entered to vacate the decree 

and revoke the consent on the grounds 

that consent was obtained by fraud or 

duress, or that the proceeding failed to 

comply with ICWA. 

(b) Upon the filing of such petition, 

the court must give notice to all parties 

to the adoption proceedings and the 

Indian child’s tribe. 

(c) The court must hold a hearing on 

the petition. 

(d) Where the court finds that the 

parent’s consent was obtained through 

fraud or duress, the court must vacate 

the decree of adoption, order the 

consent revoked and order that the child 

be returned to the parent. 

G.2. Who can make a petition to 

invalidate an action? 

(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 where it is alleged that the Act 

has been violated: 

(1) An Indian child who is 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) There is no requirement that the 

particular party’s rights under the Act 

be violated to petition for invalidation; 

rather, any party may challenge the 

action based on violations in 

implementing the Act during the course 

of the child custody proceeding. For 

example, it is acceptable for the tribe to 

petition to invalidate an action because 


asabaliauskas on DSK5VPTVN1PROD with NOTICES
Federal Register / Vol. 80, No. 37 / Wednesday, February 25, 2015 / Notices 10159 

it violated the rights of a parent, or for 

a parent to petition to invalidate an 

action because the action violated the 

statutory rights of the tribe. ICWA is 

designed to provide rights to ensure that 

tribes, parents, and children are 

protected. In light of Congressional 

findings in ICWA, it is presumed that 

the Indian child is disadvantaged if any 

of those rights are violated. 

(d) The court should allow, if it 

possesses the capability, alternative 

methods of participation in State court 

proceedings by family members and 

tribes, such as participation by 

telephone, videoconferencing, or other 

methods. 

G.3. What are the rights of adult 

adoptees? 

(a) Upon application by an Indian 

individual who has reached age 18 who 

was the subject of an adoptive 

placement, the court that entered the 

final decree 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. 

(b) This section should be applied 

regardless of whether the original 

adoption was subject to the provisions 

of the Act. 

(c) Where State law prohibits 

revelation of the identity of the 

biological parent, assistance of the 

Bureau of Indian Affairs should be 

sought to help an adoptee who is 

eligible for membership in a tribe to 

become a tribal member without 

breaching the Privacy Act or 

confidentiality of the record. 

(d) In States where adoptions remain 

closed, the relevant agency should, at a 

minimum, communicate directly with 

the tribe’s enrollment office and provide 

the information necessary to facilitate 

the establishment of the adoptee’s tribal 

membership. 

(e) Agencies should work with the 

tribe to identify at least one tribal 

designee familiar with 25 U.S.C. 1917 to 

assist adult adoptees statewide with the 

process of reconnecting with their tribes 

and to provide information to State 

judges about this provision on an 

annual basis. 

G.4. When must notice of a change in 

child’s status be given? 

(a) Notice by the court, or an agency 

authorized by the court, must be given 

to the child’s biological parents or prior 

Indian custodians and the Indian child’s 

tribe whenever: 

(1) A final decree of adoption of an 

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; 

or 

(3) Whenever an Indian child is 

removed from a foster care home or 

institution to another foster care 

placement, preadoptive placement, or 

adoptive placement. 

(b) The notice must inform the 

recipient of the right to petition for 

return of custody of the child. 

(c) A parent or Indian custodian may 

waive his or her right to such notice by 

executing a written waiver of notice 

filed with the court. The waiver may be 

revoked at any time by filing with the 

court a written notice of revocation. A 

revocation of the right to receive notice 

does not affect any proceeding which 

occurred before the filing of the notice 

of revocation. 

G.5. What information must States 

furnish to the Bureau of Indian Affairs? 

(a) Any state entering a final adoption 

decree or order must furnish a copy of 

the decree or order 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: 

(1) Birth name of the child, tribal 

affiliation and name of the 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 the 

enrollment or eligibility for enrollment 

of the adopted child. 

(b) Confidentiality of such 

information must be maintained and is 

not subject to the Freedom of 

Information Act, 5 U.S.C. 552, as 

amended. 

G.6. How must the State maintain 

records? 

(a) The State must establish a single 

location where all records of every 

voluntary or involuntary foster care, 

preadoptive placement and adoptive 

placement of Indian children by courts 

of that State will be available within 

seven days of a request by an Indian 

child’s tribe or the Secretary. 

(b) The records must contain, at a 

minimum, the petition or complaint, all 

substantive orders entered in the 

proceeding, and the complete record of 

the placement determination. 

Dated: February 19, 2015. 

Kevin K. Washburn, 

Assistant Secretary—Indian Affairs. 

[FR Doc. 2015–03925 Filed 2–24–15; 8:45 am] 

BILLING CODE 4310–4J–P 

DEPARTMENT OF THE INTERIOR 

National Park Service 

[NPS–PWR–PWRO–17253; 

PX.PD077160I.00.4] 

Draft Environmental Impact Statement 

for Alcatraz Ferry Embarkation Plan, 

San Francisco County, California. 

AGENCY: National Park Service, Interior. 

ACTION: Notice of availability. 

SUMMARY: The National Park Service 

(NPS) has prepared a Draft 

Environmental Impact Statement (DEIS) 

for the Alcatraz Ferry Embarkation 

project. The project would establish a 

new, long-term ferry embarkation site 

for passenger service between the 

northern San Francisco waterfront and 

Alcatraz Island. It would also establish 

occasional special ferry service between 

the selected Alcatraz ferry embarkation 

site and the existing Fort Baker pier, as 

well as between Fort Mason and other 

destinations in San Francisco Bay. 

DATES: All comments must be 

postmarked or transmitted not later than 

90 days from the date of publication in 

the Federal Register of the 

Environmental Protection Agency’s 

notice of filing and release of the DEIS. 

Upon confirmation of this date, we will 

notify all entities on the project mailing 

list, and public announcements about 

the DEIS review period will be posted 

on the project Web site (http://

parkplanning.nps.gov/

ALCAembarkation) and distributed via 

local and regional press media. 

FOR FURTHER INFORMATION CONTACT: 

Please contact the Golden Gate National 

Recreation Area Planning Division at 

(415) 561–4930 or goga_planning@

nps.gov. 

SUPPLEMENTARY INFORMATION: The 

purpose and need for the project is 

driven by the following factors: (1) 

Alcatraz Island ferry service has been 

subject to location changes every 10 

years, which has led to visitor 

confusion, community concerns, and 

inconsistency in visitor support 

services. The site and associated 

connections should be a consistent 

feature for visitors to Golden Gate 

National Recreation Area (GGNRA). (2) 


asabaliauskas on DSK5VPTVN1PROD with NOTICES