Upcoming Article: From Theory to Practice: Incorporating the “Active Efforts” Requirement in Indian Child Welfare Act Proceedings

Megan Scanlon’s student comment will be published in the upcoming summer 2011 edition of the Arizona State Law Journal. Here is a brief summary.

From Theory to Practice: Incorporating the “Active Efforts” Requirement in Indian Child Welfare Act Proceedings

The Indian Child Welfare Act (“ICWA”) recently turned thirty-three. The ICWA is a fascinating law because it has remained unchanged since its inception, and its terms have only reached the United States Supreme Court in a single case. Yet, the ICWA is frequently applied to thousands of cases across the country without consistency. In particular, the “active efforts” requirement within the ICWA continues to plague both state and tribal courts. Confusion surrounding the meaning of active efforts and what the term requires is a challenge confronting judges, attorneys, social workers, and other organizations involved in Indian child proceedings. Does “active efforts” mean something more than “reasonable efforts,” a term used by non-Indian child adoption laws? Does “active efforts” require child welfare agencies to cater to the particular needs of Indian tribes and families? This comment answers both questions in the affirmative.

The comment surveys recent cases from numerous state supreme courts, including Utah, Nevada, Michigan, Minnesota, South Dakota, and Maryland, which addressed these two aforementioned questions or granted certiorari to review the active efforts requirement. ICWA studies and surveys published within the last ten years are also cited in the comment to support my argument. Courts that have not addressed the active efforts issue will soon tackle the question as the ICWA continues to face increasing scrutiny in the wake of the judicially created “existing Indian family exception.” Additionally, scholars and legislators are now reviewing the ICWA’s history, its present status, and its future. Should the ICWA be amended in the near future, a new definition of active efforts is imperative.

This comment is relevant not only for practitioners in Arizona, but also those in other jurisdictions. This article utilizes information from the ICWA’s legislative history, the Bureau of Indian Affairs (BIA) guidelines, and ICWA application in various states to promote a uniform standard for active efforts across state and tribal lines. By including cases from multiple courts, this comment analyzes the current status of the active efforts requirement in practice. ICWA studies from Arizona, South Dakota, and North Dakota that supply additional data, help shape the recommendations in this comment to improve the application of the active efforts requirement.

To learn more about the history, current developments, and potential future for the active efforts requirement in ICWA proceedings, please see my comment in the Summer Issue of the Arizona State Law Journal.