38 Children’s Legal Rights Journal [Vol. 37: 1 2017]
actively seek reunification of Indian children and birth parents.199 The BIA’s recently announced
Guidelines expand the active efforts requirement, mandating that state officials prove beyond a
reasonable doubt that active efforts have been unsuccessful, and prove this through the
testimony of an expert witness who is an expert in the culture and customs of the child’s tribe (as
opposed to an expert on child welfare or child psychology).200 And the BIA’s 2016 regulations
provide that the “active efforts” requirement must apply as soon as state officers have “reason to
know”—often merely a suspicion—that a child is subject to ICWA.201
The Supreme Court held in 2013 that “active efforts” are not required in cases where the
birth parent has never had contact with the child, in which case there is no Indian family
threatened with breakup.202 But the “active efforts” requirement may be more problematic in
cases where the birth parent has had contact, because in such cases, that requirement can force
state officials to return children to the very parents who have abused them in the first place.
One example of this is In re Interest of Shayla H.,203 in which Nebraska child welfare
officials removed three children, Shayla ( 12), Shania ( 11), and Tanya ( 9) from their birth father,
David, due to allegations of physical abuse.204 Specifically, Shayla had been beaten by David’s
girlfriend, Danielle (not the children’s mother), and child welfare officials found that all three
were suffering from neglect. Shania and Tanya were enrolled members of the Sioux tribe, and
199 A.M. v. State, 891 P.2d 815, 827 (Alaska 1995).
200 Guidelines, 80 Fed. Reg. at 10156, D. 2 & D. 3. The 2016 regulations “decline[d] to establish a uniform standard
of proof” with regard to active efforts, but promised further evaluation for “future rulemakings.” 81 Fed. Reg. at
201 BIA Regulations § 23. 107, 81 Fed. Reg. at 38869-70. California Rules of Court also require that ICWA be
applied whenever there is “reason to know” the child is an Indian child. Cal. R. Ct. 5.481. Guidelines, 80 Fed. Reg.
at 10156, D. 2 & D. 3. The 2016 regulations “decline[d] to establish a uniform standard of proof” with regard to
active efforts, but promised further evaluation for “future rulemakings.” 81 Fed. Reg. at 38816.
202 Adoptive Couple v. Baby Girl, 133 S. Ct. 2552, 2562 (2013).