Montana Supreme Court: State has Duty to Actively Determine if Child is Indian Child


In this case, as early as 2014, the State, through the Department, had reason to believe and, as asserted in its various petition averments and request for the District Court to proceed under ICWA, did believe that L.D. was an Indian child by affiliation with the Chippewa Cree Tribe. Though it gave due notice to the Tribe of the pendency of the initial foster care and subsequent parental rights termination proceedings, there is no evidence that the Department ever formally sought or received a conclusive tribal determination that L.D. was or was not eligible for tribal enrollment. Instead, the Department passively relied on the inaction of the Tribe and the assertions or beliefs of the parents that L.D. was not eligible for tribal membership. However otherwise reasonable, this passive reliance was insufficient to satisfy the Department’s ICWA burden to actively investigate further and ultimately make formal inquiry with the Tribe for a conclusive determination of L.D.’s membership eligibility.

Also, with briefing (a rarity in ICWA cases)!

DA 17-0419AppellantBrief

DA 17-0419AppelleeBrief

DA 17-0419ReplyBrief

3 thoughts on “Montana Supreme Court: State has Duty to Actively Determine if Child is Indian Child

  1. Lara/Trace March 28, 2018 / 10:32 am

    Is this rampant, Kate?

  2. ilpc March 28, 2018 / 11:07 am

    I suppose it depends on which piece you mean–the state’s role, or the tribe’s. Generally I think this is a pretty standard description of the amount of work that goes into determining the child’s status by the state.

  3. Lara/Trace April 1, 2018 / 5:13 pm

    Both, but obviously the tribes need to work on this too.

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