indianz.com your internet resource indianz.com on facebook indianz.com on twitter indianz.com on Google+
ph: 202 630 8439
Kill The Tobacco Master Settlement Agreement
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:
Tim Giago: Deaths of Native men in Rapid City remain unsolved (10/20)
Charles 'Chuck' Trimble: Let Crazy Horse's spirit rest in peace (10/20)
Mark Trahant: Races come down to turnout in three key states (10/20)
Native Sun News: Billy Mills wows youth at Black Hills Powwow (10/20)
Cedric Sunray: Tribes abandon traditional aspects of inclusion (10/20)
Dustina Gill: Vote for Rick Weiland to protect our sacred waters (10/20)
Ousted Project Runway contestant reaffirms Puyallup heritage (10/20)
Bryan Brewer: Park helps Oglala Sioux Tribe protect its culture (10/20)
Robert Porter: Don't let tribal issues fall prey to partisan politics (10/20)
Jay Daniels: Let BIA make changes to rights-of-way regulation (10/20)
Mike McBride: Sovereign goodwill at a low in tribal tax dispute (10/20)
Chukchansi Tribe sends layoff notices to most casino workers (10/20)
Rivals raise nearly $16M to block North Fork Rancheria casino (10/20)
Judge won't let BIA proceed with compact for Pojoaque Pueblo (10/20)
Candidates discuss Menominee Nation's off-reservation casino (10/20)
Opinion: Suckers help Chumash Tribe finance casino expansion (10/20)
Native Sun News: Oglala Sioux Tribe buckles to pressure on park (10/17)
Mark Trahant: Native vote could tip races in Idaho and Colorado (10/17)
Crystal Willcuts: Remembering the beauty that was my mother (10/17)
Blackfeet actress Misty Upham found dead after going missing (10/17)
Citizen Potawatomi Nation sues city over detachment petition (10/17)
Opinion: Politicians relying on Native voters in a close election (10/17)
Poarch Creeks donate another $500K to Democratic candidate (10/17)
Montana to transfer bison from Yellowstone to Fort Peck Tribes (10/17)
Opinion: Listen to Native Americans who oppose racist mascots (10/17)
Charges possible in dispute at Chukchansi Tribe's closed casino (10/17)
Oglala Sioux Tribe might open third casino under new compact (10/17)
Women dominate workforce at Northern Arapaho Tribe's casino (10/17)
Ho-Chunk Nation to shut down poker room after losing lawsuit (10/17)
Blog: What to know about Prop 48 and off-reservation gaming (10/17)
Native Sun News: Native vote plays key role in Senate matchup (10/16)
Dean Chavers: Calling out Ward Churchill and other wannabes (10/16)
Glenn Morris: A sorry spectacle at UN indigenous peoples meet (10/16)
Crosscut to present special award to late activist Billy Frank Jr. (10/16)
Editorial: Our schools can learn from success at tribal colleges (10/16)
Column: Language police want FCC to bar R-word on airwaves (10/16)
Navajo lawyer named chair of Washington gaming commission (10/16)
Judge won't allow factions of Chukchansi Tribe to reopen casino (10/16)
Alabama governor shifts stance on compact for Poarch Creeks (10/16)
Muscogee Nation wins key permit for $375M casino expansion (10/16)
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.