Indian Child’s Tribe Determination out of Alaska Supreme Court

Here is the decision. sp7628

The facts of this case were a little unusual, where a foster family attempted to have a child in their care made a member of one tribe when he was already a citizen of another. The holdings, however, are  useful both for clarity in the regulations for the determination of an Indian child’s tribe, and for keeping state courts out of tribal citizenship decisions.

Court decisions reflect the same rule of deference to the tribe’s exercise of control over its own membership. The U.S. Supreme Court has long recognized tribes’ “inherent power to determine tribal membership.” In John v. Baker we recognized that “the Supreme Court has articulated a core set of [tribes’] sovereign powers that remain intact [unless federal law provides otherwise]; in particular, internal functions involving tribal membership and domestic affairs lie within a tribe’s retained inherent sovereign powers.” We have also “long recognized that sovereign powers exist unless divested,” and “ ‘the principle that Indian tribes are sovereign, self-governing entities’ governs ‘all cases where essential tribal relations or rights of Indians are involved.’ ”

Chignik Lagoon’s argument would require state courts to independently interpret tribal constitutions and other sources of law and substitute their own judgment on questions of tribal membership. This argument is directly contrary to the directive of 25 C.F.R. § 23.108.

The Indian Law Clinic at MSU College of Law provided research and technical assistance to the Village of Wales in this case.

Reason to Know Decision out of Colorado Court of Appeals [ICWA]

The Colorado Court of Appeals analyzed the regs on the reason to know issue, a similar argument to the In re Z.J.G. case from Washington. And as in Z.J.G., the Department is arguing for a narrower interpretation. However, the Court of Appeals reasoned:

Recall that the federal regulation and the Colorado statute implementing ICWA’s “reason to know” component distinguish between information that the child is an Indian child, 25 C.F.R. § 23.107(c)(1); § 19-1-126(1)(a)(II)(A), and information indicating that the child is an Indian child, 25 C.F.R. § 23.107(c)(2); § 19-1- 126(1)(a)(II)(B). These two provisions cannot have the same meaning because that would make one superfluous.


As a result, divisions of this court have repeatedly recognized that, where a district court receives information that the child’s family may have connections to specific tribes or ancestral groups, the court has “reason to know” that the child is an Indian child — even where the information itself does not establish that the child fully satisfies the definition of an Indian child

Final Rule on Tribal Veteran Service Officers

Here. With apologies for the lateness of this post, this rule was promulgated at the end of the Obama Administration:

The Department of Veterans Affairs (VA) is amending its regulations concerning recognition of certain national, State, and regional or local organizations for purposes of VA claims representation. Specifically, this rulemaking allows the Secretary to recognize tribal organizations in a similar manner as the Secretary recognizes State organizations. The final rule allows a tribal organization that is established and funded by one or more tribal governments to be recognized for the purpose of providing assistance on VA benefit claims. In addition, the final rule allows an employee of a tribal government to become accredited through a recognized State organization in a similar manner as a County Veterans’ Service Officer (CVSO) may become accredited through a recognized State organization. The effect of this action is to address the needs of Native American populations who are geographically isolated from existing recognized Veterans Service Organizations (VSOs) or who may not be utilizing other recognized VSOs due to cultural barriers or lack of familiarity with those organizations.

Effective Date: This rule is effective February 21, 2017.

Initial Observations on the ICWA Regulations

Today’s additions to this post have been added in red text.

The Rule is organized in much the same way as the Guidelines. They do not mirror each other, however. These are just highlights of the actual rule, not the 300+ pages addressing all of the comments, which look to be incredibly useful.

The Department anticipates issuing updated Guidelines in the next six months, before the final rule goes into effect. p.10, “Overview of Final Rule”

The Rule does not use the phrase “existing Indian family”, but pp 90-94 of the text explain that the Rule overrules the application of the EIF through other means:

The final rule no longer uses the nomenclature of the exception, and instead focuses on the substance, rather than the label, of the exception. Thus, the final rule imposes a mandatory prohibition on consideration of certain listed factors, because they are not relevant to the inquiry of whether the statute applies. If a child-custody proceeding concerns a child who meets the statutory definition of “Indian child,” then the court may not determine that ICW A does not apply to the case based on factors such as the participation of the parents or the Indian child in Tribal cultural, social, religious, or political activities, the relationship between the Indian child and his or her Indian parents, whether the parent ever had custody of the child, or the Indian child’s blood quantum.  

Rule at 93.


The definitions of continued custody, custody, and domicile are extensive and helpful, includes tribal custom and tribal law, makes clear that any custody at any time in the past counts as “continued custody” and makes the child’s domicile dependent on the custodial parent, not just mother. 23.2.

The active efforts definition is marginally different than the one in the Guidelines. It does not specifically state they are more or different than ASFA’s reasonable efforts, but it does say they must be “affirmative, active, thorough, and timely”. The list of elements under what active efforts “may include, for example” are also slightly different, and combine some of the Guideline elements (4 in the regs is 9&5 in the Guidelines; 7 is 10&14). 23.2.

The Department’s reasoning regarding ASFA is as follows, though is contrary to how state courts have been comparing the two at the appellate level, and not entirely helpful:

Unlike the proposed rule, the final rule does not define “active efforts” in comparison to “reasonable efforts.” After considering public comments on this issue, the Department concluded that referencing “reasonable efforts” would not promote clarity or consistency, as the term “reasonable efforts” is not in ICW A and arises from different laws (e.g., the Adoption Assistance and Child Welfare Act of 1980, as modified by the Adoption and Safe Families Act (ASFA), see 42 U.S.C. 670, et seq., as well as State laws). Such reference is unnecessary because the definition in the final rule focuses on what actions are necessary to constitute active efforts.

Rule at 50.

“When Does ICWA Apply?” addresses the issue of “continued custody” thrown into doubt by Adoptive Couple v. Baby Girl. It also specifically states a child’s blood quantum may not be considered by the state court. 23.103(c).

State laws that provide higher protections to the rights of the parent control over the regulations. 23.106.

State courts must ask each participant in an emergency or voluntary or involuntary child-custody proceeding whether the participant knows or has reason to know the child is an Indian child. 23.107(a).

A parental request for confidentiality in a voluntary proceeding does not relieve the court, agency, or other party from any duty of compliance with ICWA, including the obligation to verify whether the child is an Indian child. 23.107(d).

Only tribes can determine if a child is an Indian child under the law, that is a final determination that cannot be substituted by the state, and the state can use tribal enrollment documentation (for example) to make the judicial determination a child is an Indian child. 23.108.

A court must determine domicile of the child in any voluntary or involuntary child-custody proceeding. 23.110(a).

If a parent or Indian custodian appears in court without an attorney, the court must inform them of their rights under the law, including the right to appointed counsel, the right to request transfer to tribal court, the right to object to transfer, the right to request additional time, and the right to intervene in the child custody proceedings. 23.111(g).

23.113 Emergency removals (or the Oglala Sioux Tribe v. Fleming section) addresses all the requirements of emergency removal including length of time (30 days), how to terminate an emergency proceeding (initiate a proceeding subject to the provisions of ICWA, transfer to the tribe, or send the kid home), and the standard of “imminent physical damage or harm to the child”.

The regs direct state courts what they cannot consider “good cause” not to transfer a case to tribal court, but do not specify what is good cause not to transfer. States cannot consider advanced stage, prior proceedings where there was no petition to transfer, whether transfer will affect placement, cultural connections, and socioeconomic conditions. 23.118(c).

There is no standard of evidence for active efforts (states are still split on this), but similar to the Guidelines, the evidence must show a causal relationship between the particular conditions in the home and the likelihood of serious emotional or physical damage to the child. Evidence with no causal relationship of poverty, isolation, single parenthood, custodian age, crowded or inadequate housing, substance abuse, or nonconforming social behavior does not on its own constitute evidence that continued custody is likely to result in serious emotional or physical damage to the child. 23.121

Who can be a qualified expert witness is fairly vague, but the regulation specifically excludes the social worker regularly assigned to the Indian child from being the QEW. 23.122(c)

The state court must determine if a child is an Indian child in voluntary proceedings, and that determination may mean contacting the child’s tribe to verify. 23.124(b)

Consent to a voluntary adoption largely mirrors the law, but also includes that when a parent request confidentiality, the execution of consent must still be before a court of competent jurisdiction, but not in open court. 23.125(d).

Good cause to not follow the placement preferences must be made on the record, the party seeking to deviate bears the burden of proving good cause by clear and convincing evidence, and may not be based “solely on ordinary bonding or attachment that flowed from time spent in a non-preferred placement that was made in violation of ICWA.” 23.132

The regs do give good cause reasons to depart from the preferences. They include the request of one or both parents if they attest they have reviewed the placement preferences that comply with the order of preference, the request of the child, the presence of a sibling attachment, the extraordinary physical, mental, or emotional needs of the child, and the unavailability of a suitable placement after the court finds a diligent search was conducted. 23.132(c).

Courts should allow participation by telephone, videoconferencing, or other methods. 23.133.

If there are certain changes in an adopted Indian child’s status (the voluntary termination by the adoptive parent, or the final decree of adoption was set aside or vacated), the biological parent, prior Indian custodian, and tribe must be noticed. 23.139. Of course, the child remains an Indian child regardless of the adoption, so ICWA should apply to these situations anyway.

The state must maintain certain records of every voluntary or involuntary foster care, preadoptive, and adoptive placement of an Indian child, including the petition or complaint, all substantive orders, the complete record of the placement determination. That record must be made available within 14 days of a request by the child’s Tribe or the Secretary. 23.141.


Solicitor’s Opinion on the New ICWA Regulation

US DOI Solicitor Opinion on the implementation of ICWA through legislative rule:

Congress understood that these issues went beyond reservations and significantly impacted Indian children who lived off reservations as well. Congress noted that there were approximately 35,000 Indian children in foster care, adoptive homes, or institutions whose families did not “live on or near reservations”52 and yet who were subject to the same problematic State child custody proceedings. In the AIPRC Final Report, which was included as part of the Senate Report on ICWA, the Commission recommended that any final legislation address the fact that because “[m]any Indian families move back and forth from a reservation dwelling to border communities or even to distant communities, depending on employment and educational opportunities,” problems could arise when Tribal and State courts offered competing child custody determinations, and that legislation therefore had to address situations where “an Indian child is not domiciled on a reservation and [is] subject to the jurisdiction of non-Indian authorities. ”  Congress accordingly fashioned ICWA to address the removal of Indian children, as defined in the statute, regardless of where their families were located.

Additional Comments on Proposed ICWA Regulations

More than 1,000 additional comments were posted this week to on the proposed ICWA regulations, bringing the total number of comments to 1,869. We have updated the tribal nations comments page here, and the organizations page here.

Here are a few additional individual comments we noted as we scrolled through them:


Article on Yesterday’s Public Hearing on Proposed ICWA Regulations

Here, via NICWA.

“That’s been the plan from the beginning,” Bradley Goodsky told a mostly sympathetic audience at Mystic Lake Casino on Wednesday. “It’s like [child protection] has a crystal ball and we’re doomed to fail.”

Goodsky was one of the speakers to address federal administrators who are considering making it more difficult for social workers to put Indian children in foster care. The Bureau of Indian Affairs is proposing new rules that it says will strengthen the Indian Child Welfare Act, the 1978 law passed by Congress to stop the “often unwarranted” breakup of Indian families.

The act provides guidelines to child protection agencies and juvenile courts that set a high standard for placing Indian children into foster care, and it gives tribes a say in those cases. The proposed changes would raise that bar even higher, by requiring that child protection and the courts first determine if a child is Indian, and then only remove that child from a home where there is “present or impending risk of serious bodily injury or death.”Kevin Washburn, the U.S. Interior Department assistant secretary who leads the BIA, is touring the country with other agency officials to hear from tribes and the public about the proposals.

“Guidelines are great,” Washburn told the group at the casino in Prior Lake. “We need things that are legally enforceable.”

Do you have your written comments in yet? They are due May 19.