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This Comment argues that Illinois should adopt the view that active efforts are a higher standard than reasonable efforts and implement procedures encouraging state agencies and courts to implement these requirements. Following the Supreme Court's rationale in Mississippi Choctaw Band of Indians v. Holyfield, one of the only Supreme Court cases addressing the ICWA, this Comment argues that a uniform definition and application of "active efforts" should exist in every jurisdiction. Furthermore, this Comment emphasizes that "active efforts" require more than "reasonable efforts," and that these standards are different. Part I of this Comment reviews the history of the ICWA. Part II of this Comment examines the Congressional hearings concerning the ICWA to establish Congress' intent when passing the legislation more than thirty years ago. Part III examines the 1979 Guidelines promulgated by the Bureau of Indian Affairs. Part IV examines the evolution of case law regarding the ICWA. Part V discusses the application of active efforts in state courts, with an examination on the variation between jurisdictions. Part VI reviews the 2016 release of new Guidelines for the ICWA by the Bureau of Indian Affairs. Part VII discusses current challenges to the constitutionality of the ICWA and criticisms the active efforts standard has recently received. Part VIII makes recommendations to remedy the current shortage of guidance surrounding "active efforts" in section 1912(d) of the ICWA by examining the active efforts guide produced by Wisconsin under the Wisconsin Indian Child Welfare Act.

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Northern Illinois University Law Review

Suggested Citation

Cassandra Crandall, Comment, Moving Forward from the Scoop Era: Providing Active Efforts Under the Indian Child Welfare Act in Illinois, 40 N. Ill. U. L. Rev. 100 (2019).

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