A. Upon conducting the inquiry required by Article 624(D), a court has reason to know that a child in a continued custody hearing or other child custody proceeding is an Indian child if any of the following occurs:
(1) A person before the court, an officer of the court involved in the proceeding, an Indian tribe, an Indian organization, or an agency informs the court that the child is an Indian child.(2) A person before the court, an officer of the court involved in the proceeding, an Indian tribe, an Indian organization, or an agency informs the court that it has discovered information indicating that the child is an Indian child.(3) The child who is the subject of the proceeding gives the court reason to know that he is an Indian child.(4) The court is informed that the domicile or residence of the child, the child’s parent, or the child’s Indian custodian is on a reservation or in an Alaska Native village.(5) The court is informed that the child is or has been a ward of a Tribal court.(6) The court is informed that either parent or the child possesses an identification card indicating membership in an Indian tribe.B. If the court makes a finding that there is reason to know that the child is an Indian child, the court may enter any order for placement in accordance with Article 627, but the court shall thereafter proceed as if the child is an Indian child.
Comments – 2018
(a) Paragraph A is in all substantive aspects a verbatim copy of 25 C.F.R. 23.107(c). The identification of a child as an “Indian child” means that the informant has knowledge that the child is already a member of a particular tribe or tribes or that the child is eligible for membership because his parent is a member. See the 2018 Comment to Article 116. The identity of a particular tribe or tribes is important to fulfill the requirements of the federal Indian Child Welfare Act (ICWA) that notice of the pendency of a child custody proceeding be given to all tribes of which there is a reason to know that the child or parent is a member. However, ICWA recognizes that the particular tribe or tribes may not be known although the informant produces credible evidence of a parent’s tribal membership; in that case, notice is given to the Bureau of Indian Affairs.(b) Paragraph B reflects the emergency removal provisions of ICWA. 25 U.S.C. 1922 permits emergency removal to prevent “imminent physical damage or harm” to the child. According to 25 C.F.R. 23.113, emergency placement is intended to be short term pending initiation of child in need of care proceedings. The Guidelines for Implementing the Indian Child Welfare Act explain that emergency proceedings – which generally do not include the full suite of due process or ICWA protections for parents and children – must not extend for longer than necessary to prevent harm to the child. If there is sufficient evidence of abuse or neglect, the state should proceed with a child in need of care proceeding, which provides full due process and ICWA protections. Guidelines for Implementing the Indian Child Welfare Act (Bureau of Indian Affairs, Dec. 2016), Section 23.113(e), at p. 27.(c) According to 25 C.F.R. 23.107(b), if there is reason to know that the child is an Indian child, but the court does not have sufficient evidence to determine that the child is or is not an Indian child, the court must confirm (by a report, declaration, or testimony in the record) that the agency used due diligence to identify and work with the tribe to verify membership. The court must also treat the child as an Indian child until it is determined on the record that the child does not meet the definition of Indian child.(d) Neither ICWA nor the regulations promulgated thereunder require notice prior to an emergency removal because of the short time frame in which emergency proceedings are conducted to secure the safety of the child. Guidelines for Implementing the Indian Child Welfare Act (Bureau of Indian Affairs, Dec. 2016), Section 23.113(c), at p. 29. However, if the child is found to be an Indian child, notice of the proceedings must be immediately given to any identified tribe or, if the tribe cannot be identified, to the Bureau of Indian Affairs of the Department of the Interior, in accordance with ICWA. All other ICWA requirements will apply to the court’s proceedings after entry of a continued custody order, unless thereafter the court finds that the child is not an Indian child in accordance with Article 661.1.
