indianz.com your internet resource indianz.com on facebook indianz.com on twitter indianz.com on Google+ indianz.com on soundcloud
phone: 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:
On Facebook

On Twitter

On Google+

On SoundCloud
Local Links:
Federal Register | Indian Gaming | Jobs & Notices | In The Hoop | Message Board
Latest News:
Sen. Barrasso introduces another version of land-into-trust fix (7/29)
Standing Rock Sioux Tribe adopts banishment for drug dealers (7/29)
Native Sun News: Rapid City trial ends with no defense witnesses (7/29)
Lakota Country Times: Youth come to Pine Ridge for 'Exposures' (7/29)
Charles Trimble: Being mixed-race Indian and being proud of it (7/29)
Ivan Star: It's up to all of us to keep the Lakota language alive (7/29)
Congress fails to provide funds to help tribes comply with VAWA (7/29)
Suit alleges tribal leaders received kickbacks from lobbying firm (7/29)
Flandreau Santee Sioux Tribe claims DOJ support for marijuana (7/29)
Community on Crow Reservation on lockdown due to shooting (7/29)
Former Chippewa Cree Tribe chair sentenced in corruption case (7/29)
Hillary Clinton refuses to answer questions about Keystone XL (7/29)
Judge upset with delay in drilling dispute affecting sacred land (7/29)
Tribal leaders scale back plans to regulate energy development (7/29)
Fort Belknap Indian Community awaits tests in deaths of bison (7/29)
Column: Northern Cheyenne Tribe took a final stand in Oklahoma (7/29)
Public school board in Indiana votes to eliminate 'Indian' mascot (7/29)
Opinion: Sioux tribes deserve a seat on university naming panel (7/29)
Study outlines impacts of tribal gaming on economy in Oklahoma (7/29)
Judge orders Aquinnah Wampanoag Tribe to stop work on casino (7/29)
Fond du Lac Band prevails yet again in long-running casino feud (7/29)
Chukchansi Tribe hosts job fair amid hopes of reopening casino (7/29)
Cowlitz Tribe still working on design plans for contested casino (7/29)
Indian Health Service discusses LGBT issues in historic meeting (7/28)
Haskell students to study fracking on North Dakota reservation (7/28)
Erica Pinto makes history as first woman leader of Jamul Village (7/28)
Native Sun News: Young artist wins top award at Native market (7/28)
Lakota Country Times: Oglala Sioux Tribe hosts war pony races (7/28)
Steve Russell: The hypocrisy of race and Cherokee citizenship (7/28)
Terese Marie Mailhot: I was raised to be angry at White women (7/28)
Dina Gilio-Whitaker: Indian Country stuck with bad Republican (7/28)
Aaron Angerman: Alaska Natives not consulted about mine plan (7/28)
IHS hired physician who was sanctioned by Justice Department (7/28)
Cherokee Nation candidate emerges victorious in new election (7/28)
Ponca Tribe reclaims small part of ancestral lands in Nebraska (7/28)
Tuscarora Nation returns to ancestral home in North Carolina (7/28)
9th Circuit sides with Suquamish Tribe in fishing rights dispute (7/28)
10th Circuit affirms convictions of former Paiute Tribe employee (7/28)
Warm Springs Tribes welcome early start to huckleberry season (7/28)
Young man from Omaha Tribe sentenced for sexual abuse of child (7/28)
Makah Nation man charged for assault during attempted escape (7/28)
Miami Nation stays out of public school mascot debate in Indiana (7/28)
Tohono O'odham Nation wins round in casino battle with Arizona (7/28)
Wisconsin asks Supreme Court to rule on Ho-Chunk Nation poker (7/28)
Navajo Nation Council passes tax on alcohol at gaming facilities (7/28)
Seminole Tribe reiterates request for mediation in casino dispute (7/28)
Mohegan Tribe fired worker who helped casino regular break rules (7/28)
War of words escalates on mine at sacred Apache site in Arizona (7/27)
Senate Committee on Indian Affairs to take up land-into-trust fix (7/27)
Senate panel sets hearing on substance abuse in Indian Country (7/27)
Red Lake Nation schedules August 19 referendum on liquor sales (7/27)
Poarch Creeks win injunction blocking county from imposing tax (7/27)
Native Sun News: Indian elders suffer from higher dementia risk (7/27)
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.