In re M.T.

Notice Case from Montana [ICWA]

Kate Fort
In re M.T.Download

This is the year of notice and reason to know. Courts are finally wrestling with what the regulations do and do not require–and there is considerable concern about what to do if there is no response from a tribe. 

Whenever a court “knows or has reason to know” that a child is an “Indian child” under ICWA, the court is to verify the child’s status prior to conducting termination proceedings. 25 U.S.C. § 1912(a); In re L.D., 2018 MT 60, ¶ 13, 391 Mont. 33, 414 P.3d 768 (internal citations omitted). Whether a child is eligible for tribal membership is a question of fact dependent upon the child’s actual ancestry, and an Indian tribe provides the determination conclusively as a matter of law. 25 C.F.R. § 23.108(b); In re L.D., ¶ 14 (internal citations omitted); In re Adoption of Riffle, 273 Mont. 237, 242, 902 P.2d 542, 545 (1995).

¶22 It follows that a district court does not have authority to make a de novo conclusion regarding eligibility. 25 C.F.R. § 23.108(b); In re L.D., ¶ 14 (internal citations omitted). Instead, the district court must determine “(1) whether the court has reason to believe that a subject child may be an ‘Indian child’ and (2) whether an Indian tribe has conclusively determined that the child is a member or eligible for tribal membership.” In re L.D., ¶ 14 (internal citations omitted). Absent a conclusive tribal determination, a court abuses its discretion by terminating parental rights if there is “reason to believe” the child is an Indian child. In re L.D., ¶ 14 (internal citation omitted).

In this case, however, the issue was the Agency didn’t contact the Tribe at all, leading to the remand.

We hold the District Court abused its discretion in terminating Mother’s parental rights without a conclusive tribal determination of tribal membership status and enrollment eligibility in the United Keetoowah. Since the United Keetoowah is a federally recognized Cherokee tribe,3 and the Department did not contact the tribe, the District Court made a de novo determination regarding M.T. and L.T.’s United Keetoowah tribal eligibility, a determination which is in the sole province of the tribe.

Three Remanded for ICWA Notice Deficiency Cases out of California

Kate Fort1 Comment

Cases from the Second District, the Fourth District and the First District.

From the Second District:

Before the next scheduled hearing on January 31, 2013, DCFS submitted the following documents to the court: signed return receipts for the entities noticed; a letter from the Bureau of Indian Affairs acknowledging receipt of the ICWA notice but indicating it does not determine tribal eligibility; a letter from the United Keetoowah Band of Cherokee Indians in Oklahoma declining to intervene in the case because there was no evidence T.M. was a descendant of anyone on the Keetoowah Roll based on the information supplied; a letter from the Cherokee Boys Club, Inc., on behalf of the Eastern Band of Cherokee Indians, declining to intervene in the case because T.M. was neither registered nor eligible to register as a member of the tribe based on the information supplied; and a letter from the Cherokee Nation seeking further information. The Cherokee Nation letter asked DCFS to “verify correct spelling of maternal great great grandmother Lual Made [D.], also need her date of birth. Relationship of Eleonora [H.] to the above named child. [¶] We need dates of birth for everyone involved, their relationship to the child or children in question, and maiden names of all females listed. It is impossible to validate or invalidate this claim without more complete information.” (Boldface and capitalization removed.)

At the January 31, 2013 hearing, which was presided over by a different hearing officer than Commissioner Lewis, the court stated the tribes were properly noticed and it had received letters back from the tribes indicating T.M. was not an Indian child. The court found the ICWA did not apply. The court did not acknowledge the Cherokee Nation’s request for further information.

Just spit balling here, but maybe the reason Cherokee Nation puts part of its response in BOLDFACE CAPITALIZATION is to help a state court out, so it doesn’t find ICWA doesn’t apply when it might.