Chapter 6 : Section 01

Identification of an Indian Child and Determination of Jurisdiction

Procedures

Identifying a child as an Indian child

To determine whether a child is subject to the ICWA, consider these questions:

• Is the child a member of a federally recognized Indian tribe?

• Is the child eligible for membership in a federally recognized Indian tribe?

• Is the child the biological child of a member of a federally recognized Indian tribe?

• Is the child domiciled on an Indian reservation? (The child’s domicile is wherever the home of the custodial parent is, regardless of whether the child and/or parent is there at the time of removal.)

When determining whether a child is an Indian child and ICWA applies, the Department may not consider factors such as:

• the participation by the parents or the child in the tribal cultural, social, religious, or political activities;

• the relationship between the child and parents;

• whether the parent ever had custody of the child; or

• the child's blood quantum.

In order to obtain information to determine if a child is subject to ICWA ask the child (if age appropriate), caretaker and any other person with knowledge of the child or parent whether the child or parent has any American Indian ancestry. Make this inquiry any time a new party or individual with information is contacted.

Gather the following information:

• the name of the tribe (s) that the child or parent is a member of or eligible for membership;

• the tribal enrollment or identification numbers of the parents and child;

• the name of the child’s:

  • birth mother (including any maiden name);

  • maternal and paternal grandparents (including maiden names, if available);

  • alleged and/or legal father (s);

• birth dates and birth places of the child and parents (and grandparents, if available);

• Social Security Numbers for the child and parents;

• degree of Indian Blood and/or Certificate of Indian Blood (CIB) of the child and parents;

• if birth parent was adopted, the name of the parent’s birth parent(if available);

• other information about extended family members including the names, clan affiliation, date of births, and addresses of grandparents, aunts, uncles, cousins, great grandparents, step-parents, first and second cousins.

If there is reason to know a child or the child’s parent is a member of or eligible for membership in a federally recognized Indian tribe, treat the child as an Indian child until it is determined on the court record that the child is not an Indian child.

Contact your supervisor or the Assistant Attorney General if there are questions about the child’s status as an Indian child or any of the following are true:

• There is reason to believe the child may be an Indian child based on the removal from a location that is within close proximity to an Indian reservation or community.

• The child’s surname or appearance indicates the child may be of Indian ancestry.

• The identity or location of the parents, Indian custodians or tribe cannot be determined.

When the whereabouts of the child’s parent or Indian custodian are unknown, complete a diligent search using the Family Locate Service. Contact tribal social services, if the identity of the child’s or parent’s tribe(s) is known.

Determination of Jurisdiction

To determine if the Department has jurisdiction to complete the investigation, consider the following:

• If the child is an Indian child and resides and is currently located on the reservation, the Department does not have jurisdiction and the case must be referred back to tribal social services, following the procedures in Chapter 2 Section 1.

• If the child is not an Indian child or does not reside/is not domiciled on the reservation but is currently located on the reservation, contact the tribe to allow access to the child to complete the investigation. If the tribe disagrees with the investigation, contact the Assistant Attorney General.

• If the child resides or is domiciled on the reservation but is currently located off the reservation, the Department may have jurisdiction. Continue assessing the immediate health and safety of the child. Unless an immediate removal is necessary to prevent severe harm to the child, contact the Assistant Attorney General prior to taking temporary custody of the child.

If there is uncertainty about where the incident occurred or the current location of the child is unknown, consult with the Assistant Attorney General.

Notification to the Tribe

Confirm the tribe’s status as a federally recognized tribe by reviewing the most current Federal Register.

If the tribe is a federally recognized tribe, identify:

• the geographic location and Bureau of Indian Affairs Area Office of the tribe using the Federal Register; and

• the name and address of the Indian Child Welfare Designated Agent for the tribe as provided in the Federal Register.

Contact the Indian Child Welfare Designated Agent and identify the name and address of the local tribal social service program and/or ICWA representative of the tribe.

Contact the tribal social service and/or ICWA representative and request the tribe confirm the child’s and/ or parent's membership in, or eligibility for membership in, the tribe. Provide the social service and all identifying information gathered to assist in the confirmation or determination of membership.

For children and parents affiliated with the Navajo Nation, provide notice of any removal or petition filing within 48 hours (excluding weekends or holidays) as required by the DCS/Navajo Intergovernmental Agreement. The 48-hour notice must be given by telephone to Navajo Children and Family Services, ICWA Office, 928-871-6806.

Documentation

Complete the Native American Details tab in Guardian.

File a photo copy of the child’s and parent’s tribal enrollment or identification numbers in the hard copy record and document the numbers in Active Tribe Affiliations under Native American Details tab.

In Notes, document all inquiries and contacts made to investigate whether a child is an Indian child.

In Notes, document all contact with child’s parents, Indian custodian and tribal social services. File copies of all written correspondences in the hard copy case record.

Effective Date: February 1, 2021

Revision History: November 30, 2012