Reason to Know Decision from Washington Court of Appeals [ICWA]


ICWA and WICWA require a court conducting a 72-hour shelter care hearing to inquire whether the child is or may be an Indian child. A court substantially complies with that requirement if prior to the hearing the Department has begun a good faith investigation into the child’s Indian status, the parties elicit the relevant evidence during the hearing, and the court considers that evidence before ruling on shelter care.

Ok, sounds good.

The reason-to-know standard turns on evidence that the child is a tribal member, or the child is eligible for tribal membership and a biological parent is a tribal member. If there is a reason to know a child is or may be an Indian child, then ICWA and WICWA require the court to treat the child as an Indian child pending a conclusive membership determination by a tribe. A parent’s mere assertion of Indian heritage absent other evidence is not enough to establish a reason to know a child is or may be an Indian child. Because the Department’s good faith investigation before the shelter care hearing did not reveal evidence that a parent or a child was a tribal member, the court did not err in concluding that there was no reason to know the children were Indian children based on the evidence available at the time of the shelter care hearing, Of course, the Department has an obligation to continue its investigation before proceeding to a dependency or termination hearing.

Oohkay. Then what did the investigation reveal?

The investigation revealed that the mother was eligible in the Central Council of Tlingit and Haida, where her mother is enrolled, the Klawock Cooperative Association, and that father was potentially eligible at Umatilla.  This was not just the parent’s assertion (which frankly, given the specificity, should be enough*)–this included the testimony of the social worker who called Central Council. It turns out what this Court means by reason to know is actual evidence of membership:

Because the Department’s good faith investigation before the shelter care hearing did not reveal evidence that a parent or a child was a tribal member,

The children were removed on June 27. The first hearing (shelter care) took place on July 2-3. At that point, the state social worker had called Central Council and knew grandma was enrolled, but not mom. She then testified that “to her knowledge”, dad was not enrolled, but there is nothing in the opinion on how she would know that. The social worker then testifies it was possible the children were eligible for enrollment.  But then, the court’s shelter care order states there is “not a reason to know” the children are Indian children. When Central Council intervenes in the case on July 30, the Court then decided there was reason to know (well, yes, because then we all know).

Everyone knows (ahem) that three-five days is not enough time for a full notice as required by the law (by mail, return receipt requested). Those of us who do this work ALSO know it may take a tribe longer than that to determine membership. The purpose of the Regs (to treat potential/reason to know Indian children as Indian children until determined otherwise) was to ensure those children were treated as Indian children until membership is all sorted out. The Washington Court of Appeals manages to do the opposite–equating “reason to know” with just plain old “know”. Why does this all matter? The legal standard applied at the shelter care hearing:

Specifically, the information before the court at the shelter care hearing as a
result of the Department’s good faith investigation did not establish a reason to know Z.G. and M.G. were Indian children. Because there was no reason to know,
the normal serious threat of substantial harm standard applied at the shelter care hearing.

Unless a Tribe responds the parent is absolutely a member at that first phone call from the state (not even legally required notice), or the parent happens to have legal evidence of membership on him or her, Washington will claim there is no reason to know, and apply a lower burden of proof than the emergency standard required by ICWA under 1922.

*I decided not to rant about why the parent’s testimony isn’t enough/why parents in court aren’t listened to, but imagine I did.

Notice Case out of Alabama [ICWA]


Sometimes even I am struck dumb by the notice cases:

A second form, dated in 2017 and signed by C.L.B., was also introduced into evidence. C.L.B. testified that his mother had assisted him in completing the 2017 form. On the 2017 form, C.L.B. listed Cherokee and “Ojibwa-(Chippewa)” as the tribes in which he, B.E.B., or one of B.E.B.’s paternal grandparents might have membership.

Star Pope testified that, at the direction of C.L.B., she had inquired of the paternal grandmother of B.E.B. regarding with which tribes C.L.B.’s family might be affiliated. She testified that the paternal grandmother of B.E.B. had informed her that C.L.B. was not affiliated with the Cherokee or Sioux tribes but that she had identified the Chippewa or Ojibwe tribe as a possibility. Pope testified that she had contacted authorities in several different states and that she had eventually been directed to a central location to which, she said, she had mailed a letter requesting information concerning whether B.E.B. would be recognized as an Indian child or have benefits under the ICWA. DHR introduced into evidence a letter dated May 4, 2016, that had been mailed to the ICWA representative from the Chippewa Indians of Mackinac, Michigan . . .

DHR also introduced a letter from the Bay Mills Indian Community dated May 19, 2016, in response to an inquiry from DHR; that letter indicated that B.E.B. was not eligible for membership in the Bay Mills Indian Community.


Montana Supreme Court on Reason to Know [ICWA]


And a long excerpt:

Contrary to the Department’s assertion and the apparent corresponding view of the District Court, the “reason to know” standard does not necessarily require an evidentiary showing, and certainly not by the parents, that a child or parent may be eligible for tribal membership. See 25 U.S.C. § 1912(a); 25 C.F.R. §§ 23.107-08. Nor does ICWA require that an assertion of potential tribal eligibility be certain. Gerardo, 14 Cal. Rptr. 3d at 802; Kahlen, 285 Cal. Rptr. at 511. See also 25 C.F.R. §§ 23.107(a), (c), -108(a). Any more stringent construction as suggested by the State would defeat ICWA’s manifest purpose and command. Certainly, a “reason to know” is a low standard, but not an unlimited one. In re Jeremiah G., 92 Cal. Rptr. 3d 203, 207-08 (Cal. App. 2009); In re Z.H., 740 N.W.2d 648, 653-54 (Iowa App. 2007). A “reason to know” requires something more than a bare, vague, or equivocal assertion of possible Indian ancestry without reference to any identified Indian ancestors with a reasonably suspected tribal connection. See Jeremiah G., 92 Cal. Rptr. 3d at 207-08; Z.H., 740 N.W.2d at 653-54. Pursuant to 25 C.F.R. § 23.107(c)(1), Mother’s asserted belief that she may be eligible for enrollment in the Crow Tribe was minimally sufficient to constitute a reason to know that the children were Indian children under the circumstances of this case.

¶22 We are further troubled by the Department’s apparent view that it has no affirmative duty to make further inquiry or provide tribal notice and inquiry when parents are not cooperative. Lack of parental cooperation is immaterial, is not a basis for equitable waiver or estoppel, and does not otherwise relieve state agencies and courts of the duty to comply with ICWA requirements. Kahlen 285 Cal. Rptr. at 512. ICWA vests Indian children and related Indian tribes with a federal right, independent of but on par with the right of Indian and related Indian tribes with a federal right, independent of but on par with the right of Indian parents, to specified tribal notice and eligibility determinations regardless of the conduct or disregard of the parents. Miss. Band of Choctaw Indians, 490 U.S. at 49-53, 109 S. Ct. at 1609-11; Kahlen, 285 Cal. Rptr. at 512. The practical difficulty or inability of a state agency to identify the correct tribe or substantiate an assertion of requisite Indian ancestry does not relieve the agency of its duty to comply with ICWA requirements. See Kahlen, 285 Cal. Rptr. at 512.

Reason to Know [ICWA] Out of the Ohio Court of Appeals


In most states, this would most certainly be reason to know, and the agency would be required to do additional inquiry and notify a tribe. When we talk about inconsistent application of the law, this is definitely one of those areas.

With respect to Mother, the following exchange took place:

[MOTHER]: My dad is an Iroquois tribe, but I don’t know if he’s registered, but, I mean, his family is all native Americans and stuff. Yes, they are.

[COUNSEL]: But what we need to know is whether you yourself are registered with a tribe.

[MOTHER]: Oh, no.

[COUNSEL]: You’re not. Okay. That’s what we needed. Thank you, your Honor.


[COUNSEL]: So ICWA does not apply then. THE COURT: Okay. You’re definitely not registered?

[MOTHER]: No, sir. (Jan. 16, 2018 tr. 5-6.) {¶23}

Thus neither L.D. nor S.D. are members of a tribe, and Mother, herself, is not a member of any tribe. Although Mother alleged that her father is an Iroquois, L.D. and S.D. are not his children; they are his grandchildren. As previously stated, the ICWA defines an “Indian child” as any minor child who is either a member of an Indian tribe or “is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.” 25 U.S.C. 1903(4) (Emphasis added.) A grandchild of a member of an Indian tribe falls outside the definition and therefore does not qualify as an “Indian child” under the act. Therefore, the ICWA is inapplicable, and the trial court was not required to comply with its mandates.

North Carolina “Reason to Know” ICWA Notice Case


*Whether the evidence presented at the adjudication hearing should have caused the trial court to have reason to know an “Indian child” may be involved and trigger the notice requirement is the issue before us. The federal regulations implementing ICWA and promulgated in 2016, clearly the states court has reason to know an “Indian child” is involved if: “Any participant in the proceeding, officer of the court involved in the proceeding, Indian Tribe, Indian organization, or agency informs the court that it has discovered information indicating that the child is an Indian child.” 25 C.F.R. § 23.107(c)(2) (2018).

The ICWA proscribes that once the court has reason to know the child could be an “Indian child,” but does not have conclusive evidence, the court should confirm and “work with all of the Tribes … to verify whether the child is in fact a member.” 25 C.F.R. § 23.107(b)(1). Federal law provides: “No foster care placement or termination of parental rights proceeding shall be held until at least ten days after receipt of notice by the parent or Indian custodian and the tribe or the Secretary[.]” 25 U.S.C. § 1912(a). Further, a court must “[t]reat the child as an Indian child, unless and until it is determined on the record that the child does not meet the definition of an ‘Indian child.’ ” 25 C.F.R. § 23.107(b)(2).

Other jurisdictions have recognized that “Indian child” status of the juvenile can only be decided by the tribe itself; therefore, only a suggestion that the child may be of Indian heritage is enough to invoke the notice requirements of the ICWA. In re Antoinette S., 104 Cal. App. 4th 1401, 1408, 129 Cal.Rptr.2d 15, 21 (2002). Additionally, ICWA provides that even after the completion of custody proceedings, if the provisions of ICWA were violated, “any parent or Indian custodian from whose custody such child was removed, and the Indian child’s tribe may petition any court of competent jurisdiction to invalidate such action.” 25 U.S.C. § 1914 (2012).

In In re A.R., the Respondent-father claimed that he had “a family connection to a registered Native American group” which consequently qualified his children for the protections under ICWA. In re A.R., 227 N.C. App. 518, 523, 742 S.E.2d 629, 633 (2013). . . . Further, this Court held that “[t]hough from the record before us we believe it unlikely that [the juveniles] are subject to the ICWA, we prefer to err on the side of caution by remanding for the trial court to … ensure that the ICWA notification requirements, if any, are addressed … since failure to comply could later invalidate the court’s actions.” Id.

In the case of In re C.P., the respondent-mother made the bare assertion that she and her children could possibly be eligible for membership with a band of Potawatomi Indians. In re C.P., 181 N.C. App. at 702, 641 S.E.2d at 16. The trial court required the ICWA notice to be sent. Id. When the time required under ICWA had passed without response from the tribe, the trial court allowed two continuances before determining ICWA did not apply and resumed the proceedings. Id. at 703, 641 S.E.2d at 16-17.


Our Court has required social service agencies to send notice to the claimed tribes rather than risk the trial court’s orders being voided in the future, when claims of Indian heritage arise, even where it may be unlikely the juvenile is an Indian child. See In re A.R., 227 N.C. App. at 524, 742 S.E.2d at 634; In re C.P., 181 N.C. App. at 702, 641 S.E.2d at 16.