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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 -
National Indian Child Welfare Association -
Indian Child Welfare Act resources -

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

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