indianz.com your internet resource indianz.com on facebook indianz.com on twitter indianz.com on Google+
ph: 202 630 8439
Fredericks Peebles & Morgan LLP
Advertise on Indianz.Com
Home > News > Headlines

printer friendly version
Mont. court won't apply ICWA in child custody case
Tuesday, November 11, 2003

The Indian Child Welfare Act doesn't apply to children who cannot demonstrate membership in a federally recognized tribe, the Montana Supreme Court ruled last week.

In a unanimous November 7 decision, the court's five justices refused to reinstate the parental rights of a woman with three children. Of the three, two have Indian ancestry.

But one child, identified in the opinion as C.H., isn't eligible for membership in the Little Shell Chippewa Tribe because she doesn't meet the tribe's enrollment requirement, the court said. C.H., now 13, has one-eighth Chippewa blood, not enough to meet what the court said was the tribe's one-fourth standard.

Even if the child did meet the requirement, the court said the Indian Child Welfare Act (ICWA) wouldn't apply because the tribe is not federally recognized. The Clinton administration issued a preliminary decision in the tribe's favor more than three years ago but it hasn't been finalized.

"First, C.H. is not an Indian child as defined by ICWA. ICWA requires that a child be eligible for membership in the tribe. C.H. is not eligible because of her insufficient blood quantum, " wrote Justice W. William Leaphart for the court. "Second, ICWA does not apply to tribes which have not yet been federally recognized."

The court also refused to reinstate the mother's rights with respect to another child. Identified as D.H., the child may be eligible for membership in the Northern Cheyenne Tribe, the court aid, but there wasn't enough information to make that determination.

"Accordingly, notice must be given to the Northern Cheyenne so that it may determine whether or not D.H. is or is not an Indian child," Leaphart wrote.

ICWA, which celebrated its 25th anniversary last week, was designed to ensure tribes are involved in adoption and foster care decisions. In passing the law in 1978, Congress stated "there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children." Congress recognized that Indian children were being placed in non-Indian homes, tearing them away from their culture and traditions.

The Montana Supreme Court said it understood the importance of the law. "ICWA protects the best interests of Indian children by making sure that their unique cultural heritage is taken into account. ICWA gives rights not only to parents of Indian children, but also to their tribe(s)," the court stated.

In custody proceedings, a tribe must be notified in cases involving children who eligible for membership, or already enrolled, in the tribe. The tribe has a right to intervene at any time, and proceedings could be transferred to tribal court if the parent seeking resolution of custody rights desires.

ICWA defines "Indian child" as "any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe." The act further states defines "Indian tribe" as one recognized by the federal government.

In May 2000, the Bureau of Indian Affairs said the Little Shell Chippewa Tribe qualified for federal status. Normally, the decision would be finalized within 6 months but the tribe is submitting more information to patch up holes in its documentation identified by then-assistant secretary Kevin Gover. The BIA has extended the public comment period several times.

In the meantime, the Montana Supreme Court, in another court case, said the tribe possessed all the attributes of a sovereign tribe. The court cited Gover's preliminary determination, as well as court precedents regarding the definition of Indian tribes. The decision, however, does not place the tribe on the list of federally recognized entities as required by the ICWA definitions.

Get the Decision:
In The Matter of C.H., S.H., and D.H., Youths in Need of Care (November 7, 2003)

Relevant Documents:
Court Briefs | Montana Supreme Court Indian Child Welfare Decisions | US CODE: INDIAN CHILD WELFARE

Relevant Links:
Little Shell Tribe - http://www.littleshelltribe.com
National Indian Child Welfare Association - http://www.nicwa.org
Indian Child Welfare Act resources - http://www.tribal-institute.org/lists/icwa.htm

Related Stories:
Wyo. Supreme Court won't rule on ICWA exception (11/10)
Mont. court recognizes tribe through common law (05/01)

Copyright 2000-2003 Indianz.Com
More headlines...
Stay Connected:

Local Links:
Federal Register | Indian Gaming | Jobs & Notices | In The Hoop | Message Board
Latest News:
Native Sun News: Agency weighs uranium mine near sacred site (9/30)
Jim Abourezk: South Dakota tribes can put Rick Weiland in office (9/30)
Editorial: Long delayed trust fund settlement for Navajo Nation (9/30)
North Dakota tribe sees big problems as energy industry grows (9/30)
Tim Giago: All Indian people ask is for America to honor treaties (9/29)
Native Sun News: Tribes take on IRS and win battle over taxation (9/29)
Mark Trahant: Indian vote could bring a surprise in South Dakota (9/29)
Tribal General Welfare Exclusion Act signed into law by Obama (9/29)
Obama signs law for settlement with Pyramid Lake Paiute Tribe (9/29)
Chelsey Luger and Gyasi Ross: Transforming the spirit of suicide (9/29)
Migizi Pensoneau: Behind the scenes at a Washington NFL game (9/29)
Donna Ennis: Ancestor starting asking about trust fund in 1900s (9/29)
Steven Newcomb: Indigenous conference yields power to states (9/29)
Kyle Mays: Rejecting narrowminded views of indigenous studies (9/29)
Brian Pierson: Tribal preference ruling strengthens sovereignty (9/29)
Thousands missing out on share of Cobell settlement payments (9/29)
Navajo presidential candidate in doubt over fluency in language (9/29)
Oneida Nation repeats history with women in top leadership jobs (9/29)
Al Jazeera: Tribes working together to restore bison to their land (9/29)
Indian Time: Oklahoma Indian museum expected to be big draw (9/29)
Column: Washington team should be worried about FCC petition (9/29)
Opinion: NMAI exhibit finally puts federal-tribal dealings to light (9/29)
Gun Lake Tribe hails new law that protects casino from litigation (9/29)
Former mayor remains hopeful on Los Coyotes Band casino bid (9/29)
Chumash Tribe awards $112M contract as part of casino project (9/29)
Documents show Seminole Tribe was close to new gaming deal (9/29)
Column: Taking a gamble in Louisiana - What's legal and illegal? (9/29)
Native Sun News: Tex Hall ousted in North Dakota tribal primary (9/26)
Kevin Washburn: Settlements with Indian Country hit $8B mark (9/26)
Bryan Brewer: Congress does right thing with tribal taxation bill (9/26)
9th Circuit rebuffs EEOC in dispute over tribal hiring preferences (9/26)
9th Circuit rejects treaty claims of Indian tobacco manufacturer (9/26)
Montana tribe expects a second round of Cobell buy-back offers (9/26)
Attorney General Eric Holder to step down after six-year tenure (9/26)
Choctaw Nation arrests 10 people in prostitution sting at casino (9/26)
Samish Nation isn't interested in pursuing casino on allotment (9/26)
Opponents sue to put Tohono O'odham Nation casino on ballot (9/26)
Rival tribes raise $4M to block North Fork Rancheria casino bid (9/26)
Nottawaseppi Huron Band reopens casino after electrical work (9/26)
Travel: There's more than gaming at Eastern Cherokee casino (9/26)
Native Sun News: School district outlaws debate on honor song (9/25)
Native Sun News: Billy Mills marks 50th birthday of Olympic win (9/25)
Cherokee Nation hires former White House advisor Kim Teehee (9/25)
Chelsey Luger: Washington NFL team doesn't own our identity (9/25)
Tommy Jones: Removing barriers for tribal renewable energy (9/25)
Navajo Nation to host meetings to discuss $554M settlement (9/25)
more headlines...

Home | Arts & Entertainment | Business | Canada | Cobell Lawsuit | Education | Environment | Federal Recognition | Federal Register | Forum | Health | Humor | Indian Gaming | Indian Trust | Jack Abramoff Scandal | Jobs & Notices | Law | National | News | Opinion | Politics | Sports | Technology | World

Indianz.Com Terms of Service | Indianz.Com Privacy Policy
About Indianz.Com | Advertise on Indianz.Com

Indianz.Com is a product of Noble Savage Media, LLC and Ho-Chunk, Inc.