Appendix B:

BIA GUIDELINES 44 Fed. Reg. 67584 (Nov. 26, 1979)

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67584

Federal Register Vol. 44, No. 228 / Monday, November 28, 1979 / Notices

Guidelines for State Courts; IndianChild Custody Proceedings

This notice is published in exercise ofauthority delegated by the Secretary ofthe Interior to the Assistant Secretary—Indian Affairs by 209 DM 8.

There was published in the FederalRegister. Vol. 44, No. 79/Monday, April23, 1979 a notice entitled RecommendedGuidelines for State Courts—IndianChild Custody Proceedings. This noticepertained directly to implementation ofthe Indian Child Welfare Act of 1970,Pub. L. 95-608, 92 Stat. 3069, 25 U.S.C.1901 et seq. A subsequent FederalRegister notice which invited publiccomment concerning the above waspublished on June 5, 1979. As a result ofcomments received, the recommendedguidelines were revised and areprovided below in final form.

IntroductionAlthough the rulemaking procedures

of the Administrative Procedures Acthave been followed in developing theseguidelines, they are not published asregulations because they are not- -intended to have binding legislativeeffect. Many of these guidelinesrepresent the interpretation of theInterior Department of certainprovisions of the Act. Other guidelinesprovide procedures which, if followed,will help assure that rights guaranteedby the Act are protected when statecourts decide Indian child custodymatters. To the extent that theDepartment's interpretations of the Actare correct, contrary interpretations bythe courts would be violations of theAct. If procedures different from thoserecommended in these guidelines areadopted by a state, their adequacy toprotect rights guaranteed by the Act willhave to be judged on their own merits.

Where Congress expressly delegatesto the Secretary the primaryresponsibility for interpreting a statutoryterm, regulations interpreting that termhave legislative effect. Courts are notfree to set aside those regulations simplybecause they would have interpretedthat statute in a different manner.Where, however, primary responsibilityfor interpreting a statutory term restswith the courts, administrativeinterpretations of statutory terms aregiven important but not controllingsignificance. Batterton v. Francis, 432U.S. 418, 424-425 (1977).

In other words, when the Departmentwrites rules needed to carry out

responsibilities Congress has explicityimposed on the Department, those rules -are binding. A violation of those rules isa violation of the law. When, however,the Department writes rules orguidelines advising some other agencyhow it should carry out responsibilitiesexplicitly assigned to it by Congress,those rules or guidelines are not, bythemselves, binding. Courts will, takewhat this Department has to say intoaccount in such instances, but they arefree to act contrary to what theDepartment has said if they areconvinced that the Department'sguidelines are not required by thestatute itself.

Portions of the Indian Child WelfareAct do expressly delegate to theSecretary of the Interior responsibilityfor interpreting statutory language. Forexample, under 25 U.S.C. 1918, theSecretary is directed to determinewhether a plan for reassumption ofjurisdiction is "feasible" as that term isused in the statute. This and other areaswhere primary responsibility forimplementing portions of the Act restwith this Department, are covered inregulations promulgated on July 31, 1979,at 44 FR 45092.

Primary responsibility for interpreting'other language used in the Act, however,rests with the courts that decide Indianchild custody cases. For example, thelegislative history of the Act statesexplicitly that the use of the term "goodcause" was designed to provide statecourts with flexibility in determining thedisposition of a placement proceedinginvolving an Indian child. S. Rep. No.95-597, 95th Cong., ist Sem. 17 (1977).The Department's interpretation ofstatutory language of this type ispublished in these guidelines.

Some commenters asserted thatCongressional delegation to thisDepartment of authority to promulgateregulations with binding legislativeeffect with respect to all provisions ofthe Act is found at 25 U.S.C. 1952, whichstates, "Within one hundred and eightydays after November 8, 1978, theSecretary shall promulgate such rulesand regulations as may be necessary tocarry out the provisions of this chapter."Promulgation of regulations withlegislative effect with respect to most ofthe responsibilities of state or tribalCourts under the Act, however, is notnecessary to carry out the Act. State andtribal courts are fully capable ofcarrying out the responsibilities imposedon them by Congress without beingunder the direct supervision of thisDepartment.

Nothing in the legislative historyindicates that Congress intended thisDepartment to exercise supervisory

control over state or tribal courts or tolegislate for them with respect to Indianchild custody matters. For Congress toassign to an administrative agency suchsupervisory control over courts wouldbe an extraordinary step.

Nothing in the language or legislativehistory of 25 U.S.C. 1952 compels theconclusion that Congress intended tovest this Department with suchextraordinary power. Both the languageand the legislative history indicate thatthe purpose of that section was simplyto assure that the Department movedpromptly to promulgate regulations tocarry out the responsibilities Congresshad assigned it under the Act.Assignment of supervisory authorityover the courts to an administrativeagency is a measure so at odds withconcepts of both federalism andseparation of powers that it should notbe imputed. to Congress in the absenceof an express declaration ofCongressional intent to that effect.

Some commenters also recommendedthat the guidelines be published asregulations and that the decision ofwhether the law permits suchregulations to be binding be left to thecourt. That approach has not beenadopted because the Department has anobligation not to assert authority that itconcludes it does not have.

Each section of the revised guidelinesis aocompanied by commentaryexplaining why the Department believesstates should adopt that section and toprovide some guidance where theguidelines themselves may need to beinterpreted in the light of specificcircumstances.

The original guidelines used the word"should" instead of "shall" in mostprovisions. The term "should" was usedto communicate the fact that theguidelines were the Department'sinterpretations of the Act and were notintended to have binding legislativeeffect. Many commenters, however,Interpreted the-use of "should" as anattempt by this Department to makestatutory requirements themselvesoptional. That was not the intent. If astate adopts those guidelines, theyshould be stated in mandatory terms.For that reason the word "shall" hasreplaced "should" in the revisedguidelines. The status of theseguidelines as interpretative rather thanlegislative in nature is adequately setout in the introduction.

In some instances a state may wish toestablish rules that provide even greaterprotection for rights guaranteed by theAct than those suggested by theseguidelines. These guidelines are notintended to discourage such action. Careshould be taken. however, that the

DEPARTMENT OF THE INTERIOR

Sureau'of Indian Affairs

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67585Iele•eseemes

provision of additional protections tosome parties to a child custodyproceeding does not deprive otherparties of rights guaranteed to them bythe Act.

In some instances the guidelines dolittle more than restate the statutorylanguage. This is done in order to makethe guidelines more complete so thatthey can be followed without the needto refer to the statute in every instance.Omission of any statutory language. ofcourse, does not in any way affect theapplicability of the statute.

A number of commentersrecommended that special definitions ofresidence and domicile be included inthe guidelines. Such definitions were notincluded because these terms are welldefined under existing state law. Thereis no indication that these state lawdefinitions tend to undermine in anyway the purposes of the Act.Recommending special definitions forthe purpose of this Act alone wouldsimply provide unnecessarycomplications in the law.

A. number of commentersrecommended that the guidelinesinclude recommendations for tribal-stateagreements under 25 U.S.C. 1919. Anumber of other commenters. however.criticized the one provision in theoriginal guidelines addressing thatsubject as tending to impose on suchagreements restrictions that Congressdid not intend should be imposed.Because of the wide variation in thesituations and attitudes of states andtribes. it is difficult to deal with thatissue in the context of guidelines. TheDepartment is currently developingmaterials to aid states and tribes withsuch agreements. The Department hopesto have those materials available laterthis year. For these reasons. theprovision in the original guidelinesconcerning tribal-state agreements hasbeen deleted from the guidelines.

The Department has also receivedmany requests for assistance from tribalcourts in carrying out the newresponsibilities resulting from thepassage of this Act. The Departmentintends to provide additional guidanceand assistance in that area also in thefuture. Providing guidance to statecourts was given a higher prioritybecause the Act imposes many moreprocedures on state courts than it doeson tribal courts.

Many commenters have urged theDepartment to discuss the effect of theAct on the financial responsibilities ofstates and tribes to provide services toIndian children. Many such services arefunded in large part by the Departmentof Health. Education and Welfare. Thepolicies and regulations of that

Department will have a significantimpact on the issue of Thiene:lelresponsibility. Officials of Interior andHEW will be discussing this issue witheach other. It is anticipated that moredetailed guidance on questions offinancial responsibility will be providedas a result of those consultations.

One commenter recommended thatthe Department establish a monitoringprocedure to exercise its right under 25U.S.C. 1915(e) to review state courtplacement records. HEW currentlyreviews state placement records on asystematic basis as part of itsresponsibilities with respect to statutesit administers. Interior Departmentofficials are discussing with HEWofficials the establishment of aprocedure for collecting data to reviewcompliance with the Indian ChildWelfare Act.

Inquiries concerning theserecommended guidelines may bedirected to the nearest of the followingregional and field offices of the Solicitorfor the Interior Department: n

Office of the Regional Solicitor. Departmentof the Interior. 510 L Street. Suite 400,Anchorage. Alaska 99501. (907) 265-5331.

Office of the Regional Solicitor. Departmentof the Interior. Richard Russell FederalBuilding., TS-Spring St.. SW.. Suite 1320.Atlanta. Georgia 30303. (404) 221-4447.

Office of the Regional Solicitor. Departmentof the Interior. 00 U.S. Fish & WllellifeService. Suite 306,1 Gateway Center.Newton Censer. Massachusetts 02158. (617)ISZI-CC5IL

Office of the Field Solicitor. Department ofthe Interior. 686 Federal Building. FortSnelling. Twin Cities, Minnesota 55111.(012) 725-3540.

Office of the Regional Solicitor. Departmentof the Interior. P.O. Box 25007. DenverFederal Center. Denver. Colorado 00225.(303) Me-3M

Office of the Field Solicitor. Department ofthe Interior. P.O. Box 544 Aberdeen. SouthDakota 57401. (605) 225-7254.

Office of the Field Solicitor. Department ofthe Interior. P.O. Box 1538, Billings.Montana 54103. (406) 245-e011.

Office of the Regional Solicitor. Departmentof the Interior. Room E-2;53.2800 CottageWay. Sacramento. California 95825. (016)484-4331.

Office of the Field Solicitor. Department ofthe Interior. Valley Bank Center. Suite 280.201 North Central Avenue. Phoenix.Arizona 8.5061. (602) 261-475U.

Office of the Field Solicitor. Department ofthe Ul terior. 3610 Central Avenue, Suite104. Riverside. California 92506. (714) 7137-15511

Office of the Field Solicitor. Department ofthe tnterior. Window Rock. Arizona 86515.(6ce) 871-5151.

Office of the Regional Solicitor. Departmentof the Interior. Room 3068. Page BelcherFederal Tulsa. Oklahoma 74103.(9162 5zn-75(n.

Office of the Field Solicitor. Department ofthe Interior. Room noz. Federal Building 6Courthouse. 500 Gold Avenue. S.W.Albuquerque. New Mexico 57101. (505)7138-2547.

Office c4 the Field Solicitor. Department ofthe Interior. P.O. Box 807. W.CD.10fficeBuilding. Route 1. Anadarko. Oklahoma73005. (405) 247-6873.

Office of the Field Solicitor. Department of. the Interior, P.O. Box 1508. Rooni 319.Federal Building. 5th and Broadway.Muskogee. Oklahoma 74401. (M) 633-3111.

Office of the Field Solicitor. Department ofthe Interfere ao Osage Agency. GrandviewAvenue, Pawhnska. Oklahoma 74056. (916)71/7-24.31.

Office of the Regional Solicitor. Departmentof the Interior. Suite 13101. Federal Bathe&125 South State Street. Salt Lake City. Utah84133. (8M) 524-5577.

Office of the Regional Solicitor. Departmentof the Interior. Lloyd 530 Building, Suite607.500 NIL Multnomah Street Portland.Oregon 9= (503) 231-2125.

Guideline* for State Courts

A. PolicyB. Pre-trial requirements

1. Determination that child is an Indian2. Determination of Indian child's tribe

Deterednation that placement is coveredby the Act

4. Determination of jurisdiction5. Notice requirements8. Tune limits and extensions7. Emergency removal of an Indian child5. Improper removal from custody

C. Requests for transfer to tribal coatt. Petitions under 25 U.S.C. 1.1011(b) for

transfer of prooing2. Criteria procedures foe ruling on 25

U.S.C. 1 1911(b) transfer petitions3. Determination of good cause to the

contrary4. Tribal coma declination of transfer

D. Adjudication of involuntary placements.adoptions or terminations of parentaltights

1. Access to reports3. Efforts to alleviate need to remove child

from parents or Indian custodians3. Standards of evidence4. Qualified expert witnesses

E. Voluntary proceedings1. Execution of consent2. Content of consent document3. Withdrawal of consent to placement4. Withdrawal of consent to adoption

F. Dispositions1. Adoptive placements2. Foster care or pre-adoptive placements3. Good cause to modify preferences

G. Post-trial rights1. Petition to vacate adoption2. Adult adoptee rights3. Notice of change in child's status4. Maintenance of records

A- Policy(1) Congress through the Indian Child

Welfare Act has expressed its clearpreference for keeping Indian childrenwith their families, deferring to tribaljudgment on matters concerning thecustody of tribal children, and placingIndian children who must be removedfrom their homes within their owh

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families or Indian tribes. Proceedings instate courts involving the custody ofIndian children shall follow strictprocedures and meet stringentrequirements to justify any result in anindividual case contrary to thesepreferences. The Indian Child WelfareAct, the federal regulationsimplementing the Act, the recommendedguidelines and any state statutes,regulations or rules promulgated toimplement the Act shall be liberallyconstrued in favor of a result that isconsistent with these preferences. Anyambiguities in any-of such statutes,regulations, rules or guidelines shall beresolved in favor of the result that ismost consistent with these preferences.

(2) In any child custody proceedingwhere applicable state or other federallaw provides a higher standard ofprotection to the rights of the parent orIndian Custodian than the protectionaccorded under the Indian ChildWelfare Act, the state court shall applythe state or other federal law, providedthat application of that law does notinfringe any right accorded by theIndian Child Welfare Act to an Indiantribe or child.

A. CommentaryThe purpose of this section is to apply

to the Lydian Child Welfare Act thecanon of construction that remedialstatutes are to be liberally construed toachieve their purpose. The three majorpurposes are derived from a reading tothe Act itself. In order to fully implementthe Congressional intent the rule shallbe applied to all implementing rules andstate legislation as well.

Subsection A.(2) applies to canon ofstatutory construction that specificlanguage shall be given precedence overgeneral language. Congress has givencertain specific rights to tribes andIndian children. For example, the tribehas a right to intervene in involuntarycustody proceedings. The child has aright to learn of tribal affiliation uponbecoming 18 years old. Congress did notintend 25 U.S.C. 1921 to have the effectof eliminating those rights where a courtconcludes they are in derogation of aparental right provided under a statestatute. Congress intended for thissection to apply primarily in thoseinstances where a state provides greaterprotection for a right accorded toparents under the Act. Examples of thisinclude State laws which: impose ahigher burden of proof than the Act forremoving a child from a home. give theparents more time to prepare afterreceiving notice, require more effectivenotice, impose stricter emergencyremovaLprocedure requirements onthose removing a child, give parents

greater access to documents, or containadditional safeguard to assure thevoluntariness of consent.

B. Pretrial requirements

B.1. Determination That Child Is anIndian

(a) When a state court has reason tobelieve a child involved in a childcustody proceeding is an Indian, thecourt shall seek verification of thechild's status from either the Bureau.ofIndian Affairs or the child's tribe. In avoluntary placement proceeding where aconsenting parent evidences a desire foranonymity, the court shall make itsinquiry in a manner that will not causethe parent's indentity to becomepublicly known.

(b)(1) The determination by a tribethat a child is or is not a member of thattribe, is or is not eligible for membershipin that tribe, or that the biological parentis or is not a member of that tribe isconclusive.

(ii) Absent a contrary determinationby the tribe that Is alleged to be theIndian child's tribe, a determination bythe Bureau of Indian Affairs that a childis or is not an Indian child is conclusive.

(c) Circumstances under which a statecourt has reason to believe a childinvolved in a child custody proceedingis an Indian include but are not limitedto the following:

(i) Any party to the case, Indian tribe,Indian organization or public or privateagency informs the court that the child isan Indian child.

(ii) Any public or state-licensedagency involved in child protectionservices or family support hasdiscnvert d information which suggeststhat the child is an Indian child.

(iii) The child who is the subject of theproceeding gives the court reason tobelieve he or she is an Indian child.

(iv)The residence or the domicile ofthe child, his or her biological parents,or the Indian custodian is known by thecourt to be or is shown to be apredominantly Indian community.

(v) An officer of the court involved inthe proceeding has knowledge that thechild may be an Indian child.

B.1. CommentaryThis guideline makes clear that the

best source of information on whether aparticular child is Indian is the tribeitself. It is the tribe's prerogative todetermine membership criteria and todecide who meets those criteria. Cohen,Handbook of Federal Indian Law 133(1942). Because of the Bureau of IndianAffairs' long experience in determiningwho is an Indian for a variety ofpurposes. its determinations are also

entitled to great deference. See, e.g.,United States v. Sandoval 231, U.S. 28,27 (1913).

Although tribal verification ispreferred, a court may want to seekverification from the BIA in thosevoluntary placement cases where theparent has requested anonymity and thetribe does not have a system for keepingchild custody matters confidential.

Under the Act confidentially is givena much higher priority in voluntaryproceedings than in involuntary ones.The Act mandates a tribal right of noticeand intervention in involuntaryproceedings but not in voluntary ones.Cf. 25 U.S.C. § 1912 with 25 U.S.C.§ 1913. For voluntary placements,however, the Act specifically directsstate courts to respect parental requestsfor confidentiality. 25 U.S.C. 1915(c)The most common voluntary placementinvolves a newborn infant.Confidentiality has traditionally been ahigh priority in such placements. TheAct reflects that traditional approach byrequiring deference to requests-foranonymity in voluntary placements butnot in involuntary ones. This guidelinespecifically provides that anonymity notbe compromised in seeking verificationof Indian status. If anonymity werecompromised at that point, the statutoryrequirement that requests for anonymitybe respected in applying the preferenceswould be meaningless. .

Enrollment is not always required inorder to be a member of a tribe. Sometribes do not have written rolls. Othershave rolls that list only persons thatwere members as of a certain date.Enrollment is the common evidentiarymeans of establishing Indian status, butit is not the only means nor is itnecessarily determinative. United Statesv. Broncheau. 597 F.2d 1260, 1263 (9thCir. 1979).

The guidelines also list severalcircumstances which shall trigger aninquiry by the court and petitioners todetermine whether a child is an Indianfor purposes of this Act. This listing isnot intended to be complete, but it doeslist the most common circumstancesgiving rise to a reasonable belief that achild may be an Indian.B.2. Determination of Indian Child'sTribe

(a)Where an Indian child is a memberof more than one tribe or is eligible formembership in more than one tribe batis not a member of any of them, thecourt is called upon to determine withwhich tribe the child has more

- significant contacts.(b)The court shall send the notice

specified in recommended guideline B.4.to each such tribe. The notice shall

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specify the other tribe or tribes that arebeing considered as the child's tribe andinvite each tribe's views on which tribeshall be so designated.

(c) In determining which tribe shall bedesignated the Indian child's tribe. thecourt shall =eider, among other things.the following factors:

(i) length of residence on or near thereservation of each tribe and frequencyof contacts with each tribe:

(ii) child's participation in activities ofeach tribe:

(iii) child's fluency in the language ofeach tribe;

(iv) whether there has been a previousadjudication with respect to the child bya court of one of the tribe=

(v) residence on or near one of thetribes' reservation by the child'srelatives;

(vi) tribal membership of custodialparent or Indian custodian:

(vii) interest asserted by each tribe inresponse to the notice specified insubsection 8.2.(b) of these guideline=and

(viii) the child's self identification.(d) The court's determination together

with the reasons for it shell be set out ina written document and made a part ofthe record of the proceeding. A copy ofthat document shall Le sent to eachparty to thte proceeding and to eachperson or governmental agency thatreceived notice of the proceeding..

(e) If the child is a member of only onetribe, that tribe shall be designated theIndian child's tribe even though thechild is eligible for membership inanother tribe. If a child becomes amember of one tribe during or after theproceeding, that tribe shall bedesignated as the Indian child's tribewith respect to all subsequent actionsrelated to the proceeding. If the childbecomes a member of a tribe other thanthe one designated by the court as theIndian child's tribe. actions taken basedon the court's determination prior to thechild's becoming a tribal membercontinue to be valid.

B.2- CommentaryThis guideline requires the court to

notify all tribes that are potentially theIndian child's tribe so that each tribemay assert its claim to that status andthe court may have the benefit of theviews of each tribe_ Notification of allthe tribes is also necessary so the courtcan consider the comparative interest ofeach tribe in the child's welfare inmaking its decision. That factor has longbeen regarded an importantconsideration in making child custodydecision*.

The significant factors listed in thissection are based on recommendations

by tribal officials involvedin childwelfare matters. The Act itself and thelegislative history make It clear thattribal rights are to be based on themdster.-m of a political relationshipbetween the family and the tribe. Forthat reason, the guidelines make actualtribal membership of the childconclusive on this issue.

The guidelines do provide. however.that previous decisions of a court madeon its own determination of the Indianchild's tribe are not invalidated simplybecause the child becomes a member ofa different tribe. This provision isincluded because of the importance-ofstability and continuity to a child whohas been placed outside the home by acourt If a child becomes a memberbefore a placement is made or before achange of placement becomes necessaryfor other reasons, however, then thatmembership decision can be taken intoaccount without harm to the child's needfor stable relationships.

We have received severalrecommendations that 'Indian child'stribe" status be accorded to all tribes inwhich a child is eligible for membership.The fact that Congress. in the definitionof "Indian child's tribe." provided acriterion for determining which is theIndian child's tribe, Is a clear indicationof legislative intent that there be onlyone such tribe for each child. Forpurposes of transfer of jurisdiction, thereobviously can be only one tribe toadjudicate the case. To give more thanone tribe "Indian child's tribe" status forpurposes of the placement preferenceswould dilute the preference accorded byCongress to the tribe with which thechild has the more significant contacts.

A right of intervention could beaccorded a tribe with which a child hasless significant contacts withoutundermining the right of the other tribe.A state court can. if it wishes and statelaw permits. permit intervention bymore than one tribe. It could also give asecond tribe preference in placementafter attempts to place a child with amember of the first tribe or in a home orinstitution designate.: by the first tribehad proved unsuccessful. So long as thespecial rights of the Indian child's tribeare respected. giving special status tothe tribe with the less significantcontacts is not prohibited by the Actand may. in many instances, be a goodway to comply with the spirit of the Act.

Determinations of the Indian child'stribe for purposes of this Act shall notserve as any precedent for othersituations. The standards in this statuteand these guidelines are designed withchild custody matters in mind. Adifferent determination may be entirelyappropriate in other legal contexts.

B.3. Determination That Placement IsCovered by the Act

(a) Although most juveniledelinquency proceedings are notcovered by the Act. the Act does applyto status offenses, such as tmancy andincorrigibility, which.pan only becommitted by children, and to anyjuvenile delinquency proceeding thatresults in the termination of a parentalrelationship.

(b) Child custody disputes arising inthe context of divorce or separationproceedings or similar domesticrelations proceedings are not covered bythe Act so long as custody is awarded toone of the parents.

(c) Voluntary placements which donot operate to prohibit the child's parentor Indian custodian from regainingcustody.of the child at any time are notnot covered by the Act Where suchplacements are made pursuant to awritten agreement that agreement shallstate explicitly the right of the parent orcustodian to regain custody of the childupon demand.

B.3.. CommentaryThe purpose of this section Is to deal

with some of the questions theDepartment has been receivingconcerning the coverage of the Act.

The entire legislative history makes itclear that the Act is directed primarilyat attempts to place someone other than,the parent or Indian custodian in chargeof raising an Indian child—whether on apermanent or temporary basis. Althoughthere is some overlap, juveniledelinquency proceedings are primarilydesigned for other purposes. Where thechild is taken out of the home forcommitting a crime it is usually toprotect society from further offenses bythe child and to punish the child in orderto persuade that child and others not tocommit other offenses.

Placements based on status offenses(actions that are not a crime whencommitted by an adult), however, areusually premised on the conclusion thatthe present custodian of the child is notproviding adequate care or supervision.To the extent that a status offense posesany immediate danger to society. it isusually also punishable as an offensewhich would be a crime if committed byan adult. For that reason status offensesare treated the same as dependencyproceedings and are covered by the Actand these guidelines. while otherjuvenile delinquency placements areexcluded.

While the Act excludes pkwernentsbased on an act which would be a crimeif committed by an adult. it does coverterminations of parental rights even

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where they are based on an act whichwould be a crime if committed by anadult. Such terminations are notintended as punishment and do notprevent the child from committingfurther offenses. They are based on theconclusion that someone other than thepresent custodian of the child should beraising the child. Congress hasconcluded that courts shall make suchjudgments only on the basis of evidencethat serious physiaal or emotional harmto the child is likely to result unless thechild is removed.

The Act excludes from coverage anaward of custody to one of the parents"in a divorce proceeding." If construednarrowly, this provision would leave 'custody awards resulting fromproceedings between husband and wifefor separate maintenance, but not fordissolution of the marriage bond withinthe coverage of the Act. Such a narrowinterpretation would not be in accordwith the intent of Congress. Thelegislative history indicates :Lai theexemption for divorce proceedings, inpart, was included in response to theviews of this Department that theprotections provided by this Act are notneeded in proceedings betweemparents.In terms of the purposes of this Act,there is no reason to treat separatemaintenance or similar domesticrelations proceedings differently fromdivorce proceedings. For that reason thestatutory term "divorce proceeding" isconstrued to include other domesticrelations proceedings between spouses.

The Act also excludes from itscoverage any placements that do notdeprive the parents or Indian custodiansof the right to regain custody of the childupon demand. Without this exception acourt appearance would be requiredevery time an Indian child left home togo to school. Court appearances wouldalso be required for many informalcaretaking arrangements that Indianparents and custodians sometimes makefor their children. This statutoryexemption is restated here in the hopethat it will reduce the instances in whichIndian parents are unnecessarilyinconvenienced by being required togive consent in court to such informalarrangements.

Some private groups and some statesenter into formal written agreementswith parents for temporary custody (Seee.g. Alaska Statutes 47.10.230). Theguidelines recommend that the parties tosuch agreements explicitly provide forreturn of the child upon demand if theydo not wish the Act to apply to ouchplacements. Inclusion of such aprovision is advisable because courtsfrequently assume that when an

agreement is reduced to writing, theparties have only those rightsspecifically written into the agreement.

B.4. Determination of Jurisdiction(a) In any Indian child custody

proceeding in state court, the court shalldetermine the residence and domicile ofthe child. Except as provided in Section13.7. of these guidelines, if'either theresidence or domicile is on a reservationwhere the tribe exercises exclusivejurisdiction over child custodyproceedings, the proceedings in statecourt shall be dismissed.

(b) If the Indian child has previouslyresided or been domiciled on thereservation, the state court shall contactthe tribal court to determine whether thechild is a ward of the tribal court.Except as provided in Section 0.7. ofthese guidelines, if the child is a ward ofa tribal court, the state courtproceedings shall be dismissed.

B.4. CommentaryThe purpose of this section is to

remind the state court of the need todetermine whether it has jurisdictionunder the Act. The action is dismissedas soon as it is determined that the courtlacks jurisdiction except in emergencysituations. The procedures foremergency situations are set out inSection 0.7.

B.S. Notice Requirements(a) In any involuntary child custody

proceeding, the state court shall makeinquiries to determine if the childinvolved is a member of an Indian tribeor if a parent of the child is a member ofan Indian tribe and the child is eligiblefor membership in an Indian tribe.

(b) In any involuntary Indian childcustody proceeding, notice of theproceeding shall be sent to the parentsand Indian custodians, if any, and toany tribes that may be the Indian child'stribe by registered mail with returnreceipt requested. The notice shall bewritten in clear and understandablelanguage and include the followinginformation:

(I) The name of the Indian child.OP His or her tribal affiliation.(iii) A copy of the petition, complaint

or other document by which theproceeding was initiated.

(iv) The name of the petitioner and thename and address of the petitioner'sattorney.

(v) A statement of the right of thebiological parents or Indian custodiansand the Indian child's tribe to intervenein the proceeding.

(vi) A statement that if the parents orIndian custodians are unable to afford

counsel, counsel will be appointed torepresent them.

(vii) A statement of the right of thenatural parents or Indian custodians andthe Indian child's tribe to have, onrequest. twenty days (or such additionaltime as may be permitted under statelaw) to prepare for the proceedings.

(viii) The location, mailing addressand telephone number of the court.

(ix) A statement of the right of theparents or Indian custodians or theIndian child's tribe to petition the courtto transfer the proceeding to the Indianchild's tribal court.

(x) The potential legal consequencesof an adjudication on future custodialrights of the parents or Indiancustodians.

(xi) A statement in the notice to thetribe that since child custodyproceedings are usually conducted on aconfidential basis, tribal officials shouldkeep confidential the informationcontained in the notice concerning theparticular proceeding and not reveal itto anyone who does not need theinformation in order to'oxercise thetribe's right under the Act.

(c) The tribe, parents or Indiancustodians receiving notice from thepetitioner of the pendency of a childcustody proceeding has the right, uponrequest, to be granted twenty days (orsuch additional time as may bepermitted under state law) from the dateupon which the notice was received toprepare for the proceeding.

(d) The original or a copy of eachnotice sent pursuant to this section shallbe filed with the court together with anyreturn receipts or other proof of service.

9e) Notice may be personnally servedon any person entitled to receive noticein lieu of mail service.

(i) if a parent or Indian custodianappears in court without an attorney.the court shall inform him or her of theright to appointed counsel. the right torequest that the proceeding betransferred to tribal court or to object tosuch transfer, the right to requestadditional time to prepare for theproceeding and the right (if the parent orIndian custodian is not already a party)to intervene in the nIroceedings.

(g) If the court or a petitioniing partyhas reason to believe that a parent orIndian custodian is not likely tounderstand the contents of the noticebecause of lack of adequatecomprehension of written English. acopy of the notice shall be sent to theBureau of Indian Affairs agency nearestto the residence of that personrequesting that Bureau of Indian Affairspersonnel arrange to have the noticeexplained to that person in the languagethat he ar she best understands.

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13.5. CommentaryThis section recommends that state

courts routinely inquire of participantin child custody proceedings whetherthe child is an Indian. If anyone assertsthat the child is an Indian or that thereis reason to believe the child may be anIndian, then the court shall contact thetribe or the Bureau of Indian Affairs forverification. Refer to sections 8.1 and13.2 of these guidelines.

This section specifies the informationto be contained in the notice. Thisinformation is necessary so the personswho receive notice will be able toexercise their rights in a timely manner.Subparagraph (xi) provides that tribesshall be requested to assist inmaintaining the confidentiality of theproceeding. Confidentiality may bedifficult to maintain—especially wheresmall tribes are involved and thelikelihood that the family involved iswell known by tribal officials is great.Although Congress was concerned withconfidentiality, it concluded that theinterest of tribes in the welfare of theirchildren justified taking soma risks withconfidentiality—especially ininvoluntary proceedings. It isreasonable, however, to ask tribalofficials to maintain as muchconfidentiality as possible consistentwith the exercise of tribal rights underthe Act.

The time limits are minimum onesrequired by the Act. In many instances,more time may be available under statecourt procedures or because of thecircumstances of the particular case.

In such instances. the notice shallstate that additional time is available.

The Act requires notice to the parentor Indian custodian. At a minimum.parents must be notified if terminationof parental rights is a pote:.tial outcomesince it is their relationship to the childthat is at stake. Similarly, the Indiancustodians must be notified of anyaction that could lead to the custodians'losing custody of the child. Even whereonly custody is an issue. noncustodialparents clearly have a legitimateinterest in the matter. Although notice toboth parents and 'adieu custodians maynot be required in all instances by theAct or the Fourteenth Amendment to theU.S. Constitution. providing notice toboth is in keeping with the spirit of theAct. For that reason, these guidelinesrecommend notice be sent to both.

Subsection (d) requires filing thenotice with the court so there will be acomplete record of efforts to complywith the Act.

Subsection (e) authorizes personalservices since it is superior to mailservices and provides greater protection

or rights as authorized by 25 U.S.C. 1921.Since serving the notice does notinvolve any assertion of jurisdictionover the person served, personal noticemay be served without regard to state orreservation boundaries.

Subsections (f) and (g) provideprocedures to increase the likelihoodthat rights are understood by parentsand Indian custodians.B.6. Time Limits and Extensions

(a) A tribe, parent or Indian custodianentitled to notice of the pendency of achild custody proceeding has a right.upon request, to be granted anadditional twenty days from the dateupon which notice was received toprepare for participation in theproceeding.

(b) The proceeding may not beginuntil all of the following dates havepassed:

(i)iten days after the parent or Indiancustodian (or Secretary where theparent or Indian custodian is unknownto the petitioner) has received notice;

(ii) ten days after the Indian child'stribe (or the Secretary if the Indianchild's tribe is unknown to thepetitioner) has received notice:

(iii) thirty days after the parent orIndian custodian has received notice ifthe parent or Indian custodian hasrequested an additional twenty days toprepare for the proceeding: and

(iv) Thirty days after the Indianchild's tribe has received notice if theIndian child's tribe has requested anadditional twenty days to prepare forthe proceeding.

(c) The time limits listed in thissection are the minimum time periodsrequired by the Act. The court may grantmore more time to prepare where statelaw permits.13.6. Commentary

This section attempts to clarify thewaiting periods required by the Actafter notice has been received of aninvoluntary Indian child custodyproceeding. Two independent rights areinvolved—the right of the parents orIndian custodians and the right of theIndian child's tribe. The proceeding maynot begin until the waiting periods towhich both are entitled have passed.

This section also makes clear thatadditional extensions of time may begranted beyond the minimum requiredby the Act.13.7. Emergency Removal of an IndianChild

(a) Whenever an Indian child isremoved from the physical custody ofthe child's parents or Indian custodianspursuant to the emergency removal or

custody provisions of state law, theagency responsible for the removalaction shall immediately cause aninquiry to be made as to the residenceand domicile of the child.

(b) When a court order authorizingcontinued emergency physical custodyis sought. the petition for that order shallbe accompanied by an affidavitcontaining the following information:

(i) The name. age and last knownaddress of the Indian child.

(ii)The name and address of thechild's parents and Indian custodians, ifany. If such persons are unknown, adetailed explanation of what effortshave been made to locate them shall beincluded.

(iii) Facts necessary to determine theresidence and the domicile of the Indianchild and whether either the residenceor domicile is on an Indian reservation.If either the residence or domicile isbelieved to be on an Indian reservation.the name of the reservation shall bestated.

(iv)The tribal affiliation of the childand of the parents andfor Indiancustodians.

(v) A specific and detailed account ofthe circumstances that lead the agencyresponsible for the emergency removalof the child to take that action.

(vi) If the child is believed to reside orbe domiciled on a reservation where thetribe exercises exclusive jurisdictionover child custody matters. a statementof efforts that have been made and arebeing made to transfer the child to thetribe's jurisdiction.

(vii)A statement of the specificactions that have been taken tothe parents or Indian custodians so thechild may safely be returned to theircustody.

(c) If the Indian child is not restored tothe parents or Indian custodians orjurisdiction is not transferred to thetitre. the agency responsible for thechild's removal must promptlycommence a state court proceeding forfoster care placement. lithe childresides or is domiciled on a reserTationwhere the tribe exercises exclusivejurisdiction over child custody matters,such placement must terminate as soonas the imminent physical damage orharm to the child which resulted in theemergency removal no longer exists oras soon as the tribe exercisesjurisdiction over the case—whichever isearlier.

(d) Absent extraordinarycircumstances. temporary emergencycustody shall not be continued for morethan 90 days without a determination bythe court. supported by clear andconvincing evidence and the testimonyof at least one qualified expert witness,

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that custody of the child by the parent orIndian custodian is likely to result inserious emotional or physical damage tothe child.

B.7. CommentarySince jurisdiction under the Act is

based on domicile and residence ratherthan simple physical presence, theremay be instances in which action mustbe taken with respect to a child who isphysically located off a reservation butis subject to exclusive tribal jurisdiction.In such instances the tribe will usuallynot be able to take swift action toexercise its jurisdiction. For that reasonCuagress authorized states to taketemporary emergency action.

Since emergency action must be takenwithout the careful advance deliberationnormally required, procedures must beestablished to assure that the emergencyactions are quickly subjected to review.This section provides procedures forprompt review of such emergencyactions. It presumes the state alreadyhas such review procedures end onlyprescribes additional procedures thatshall be followed in cases involvingIndian children.

The legislative history clearly statesthat placements under such emergencyprocedures are to be as short aspossible. If the emergency ends, theplacement shall end. State action shallalso cnd as seen as the tribe is ready totake over the ease.

Subsection (d) refers primarily to theperiod between when the petition isfiled and when the trial court renders itsdecision. The Act requires that, exceptfor emergencies, Indian children are notto be removed from their parents Ordena court finds clear and convincingevidence that the child would be inserious danger unless removed from thehome. Unless there is some kind of timelimit on the length of an "emergencyremoval" (that is, an' removal not madepursuant to a rmdire 11.1 y the court thatthere is clear and convincing evidencethat continued parental custody wouldmake serious physical or emotionalharm likely), the safeguards of the Actcould be evaded by use of long-termemergency removals.

Subsection (d) recommends what is,in effect, a speedy trial requirement. Thecourt shall be required to comply withthe requirements of the Act and reach adecision within Ste days unless there are"extraordinary circumstances" that 'make additional delay unavoidable.

B.S. Improper Removal From Custody(a) If, in the course of any Indian child

custody proceeding, the come hasreason to believe that the child who isthe subject of the proceeding may have

been improperly removed from thecustody of his or her parent or Indiancustodial or that the child, has beenimproperly retained after a visit or othertemporary relinquishment of custody,and that the petitioner is responsible forsuch removal or retention, the courtshall immediately stay the proceedingsuntil a determination can be made onthe question of improper removal orretention.

(b) If the court finds that the petitioneris responsible for an improper removalor retention, the child shall beimmediately returned to his or herparents or Indian custodian.

B.B. CommentaryThis section is designed to implement

25 U.S.C. 4 1920. Since a finding ofimproper removal goes to thejurisdiction of the court to hear the caseat all, this section provides that thecourt will decide the issue as soon as itarisec before prt.ceeding further on themerits.

C. Requests for Transfer to Tribul Court

C.1. Petitions under 25 1911(b)for transfer of proceeding

Either parent, the Indian custodian orthe Indian child's tribe may, orally or inwriting, request the court to transfer theIndian child custody proceeding to thetribal court of the child's tribe. Therequest shall be made promptly afterreceiving notice of the proceeding. If therequest is made orally it shall bereduced to writing by the court andmade a part of the record.

C./. CommentaryReference is made to 25 U.S.C. 19/1(b)

in the title of this section in order toclarify that this section deals only withtransfers where the child is notdomiciled or residing on an Indianreservation.

So that transfers can occur as quicklyand simply as possible, requests can bemade orally.

This section specifies that requestsare to be made promptly after receivingnotice of the proceeding. This is amodification of the timelinessrequirement that appears in the earlierversion of the guidelines. Although thestatute permits proceedings to becommenced even before actual notice isreceived by parties entitled to notice.those parties do not lose their right torequest a transfer simply becauseneither the petitioner nor the Secretarywas able to locate them earlier.

Permitting late transfer requests bypersons and tribes who were notifiedlate may cause some disruption. .t willalso, however, provide an incentive to

the petitioners to make a diligent effortto give notice promptly in order to avoidsuck diereptions.

The Department received a somber ofcomments objecting to any timelinessrequirement at Commenters pointedout that dm statute does not explicitlyrequire transfer requests to be timely.Some commenters argued that imposingsuch a requirement violated tribal andparental tights to intervene at any pointin the proceedings under 25 U.S.C.

1911(c) of the Act.While the Act pens its intervention at

any point in the proceedin& it does notexplicitly authorize transfer requests atany time. Late interventions do not havenearly the disruptive effect on theproceeding that last minute transfers do.A case that is /simian completed doesnot need to be retried when interventionis permitted. The problems resultingfrom late intervention are primarilythose of the intervenor, who has lost theoppor'nnity to influence the portion ofthe pi :marling' that was completedprior to intervention.

Although the Act does not explicitlyrequire transfer petitions to be timely, Itdoes authorize the court to refuse totransfer a case for good cause. When aparty who could have petitioned earlierwaits until the case is almost completeto ask that it be transferred to anothercourt and retried good cause exists todeny the request.

Timeliness is a proven weapon of thecourts against disruption caused bynegligence or obstructionist tactics onthe part of counsel. If a transfer petitionmust be honored at any point beforejudgment, a party could wait to see howthe trial is going in state court and thenobtain another trial if it appears theother side will win. Delaying a transferrequest could be used as a tactic to weardown the other side by requiring thecase to be tried twice. The Act was notintended to authorize such tactics andthe "good cause" provision is ampleauthority for the court to prevent them.

C.2. Criteria and Procedures for Rulingon 25 U.S.C. le 1911(b) Transfer Petitions

(a) Upon receipt of a petition totransfer by a parent, Indian custodian orthe Indian child's tribe, the court musttransfer unless either parent objects tosuch transfer, the tribal court declinesjurisdiction, or the court determines thatgood cause to the contrary exists fordenying the transfer.

(b) If the court believes or any partyasserts that good cause to the contraryexists, the reasons for such belief orassertion shall be stated in writing andmade available to the parties who arepetitioning for transfer. The petitionersshall have the opportunity to provide the

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court with their views on whether or notgood cause to deny transfer exists. C.Z.Commentary

Subsection (a) simply states the ruleprovided in 25 U.S.C. 11911(b).

Since the Act gives the parents andthe tribal court of the Indian child's tribean absolute veto over transfers, there isno need for any adversary proceedingsif the parents or the tribal court opposestransfer. Where it is proposed to denytransfer on the grounds of 'good cause."however, all parties need an opportunityto present their views to the court.

C.3. Determination of Good Cause to theContrary

(a) Good cause not to transfer theproceeding exists if the Indian child'stribe does not have a tribal court asdetaed by the Act to which the case canbe transferred.

(b) Good cause not to transfer theproceeding may exist if any of thefollowing circumstances exists:

(i)The proceeding was at anadvanced stage when the petition totransfer was received and the petitionerdid not file the petition promptly afterreceiving notice of the hearing.

(ii)The Indian child is over twelveyears of age and objects to the transfer.

(iii)The evidence necessary to decidethe case could not be adequatelypresented in the tribal court withoutundue hardship to the parties or thewitnesses.

(iv) The parents of a child over fiveyears of age are not available and thechild has had little or no contact withthe child's tribe or members of thechild's tribe.

(c) Socio-economic conditions and theperceived adequacy of tribal or Bureauof Indian Affairs social services orjudicial systems may not be consideredin a determination that good causeexists.

(d) The burden of establishing goodcause to the contrary shall be on theparty opposing the transfer.

C.3. CommentaryAll five criteria that were listed in the

earlier version of the guidelines werehighly controversiaL Comments on thefirst two criteria were almostunanimously negative. The first criterionwas whether the parents were stillLis ing. The second was whether anIndian custodian or guardian for thechild had been appointed. These criteriawere criticized as irrelevant andarbitrary. It was argued that childrenwho are orphans or have no appointedIndian custodian or guradian are nomore nor less in need cf the Act'sprotections that other children. Ix wasalso pointed out that these criteria are

contrary to the decision in WisconsinPotawatomies of the Hannahville IndianCommunity v. Houston. 397 F. Stipp. 719(W.D. Mich 1973), which was explicitlyendorsed by the committee that draftedthat Act. The court in that case foundthat tribal jurisdiction existed evenduough the children involved wereorphans for whom no guardian had beenappointed.

Although there was some support forthe third and fourth criteria, thepreponderance of the commentconcerning them was critical. The thirdcriteria was whether the child had littleor no contact with his or her Indian tribefor a significant period of time. Thefourth wasovhether the child had everresided on the reservation for asignificant period of time. These criteriawere criticized, in part, because theywould virtually exclude from transfersinfants who were born off thereservation. Many argued that the tribehas a legitimate interest in the welfareof members who have not hadsignificant previous contact with thetribe or the reservation. Some alsoargued that these criteria invited thestate courts to be making the kind ofcultural decisons that the Actcontemplated should be made by tribes..Some argued that the use of vaguewords in these criteria accorded statecourts too much discretion.

The fifth criteria was whether a childover the age of twelve objected to thetransfer. Comment on this criteria wasmuch more evenly divided and many ofthe critics were ambivalent Theyworried that young teenagers could betoo easily influenced by the judge or bysocial workers. They also argued thatfear of the unknow would cuase manyteenagers to make en ill-considereddecision against transfer.

The first four criteria in the earlierversion were all directed teoard thequestion of whether the child'sconnections with the reservation wereso tenuous that transfer back to the tribeis not advised. The circumstances underwhich it may be proper for the statecourt to take such considerations intoaccount are set out in the revisedsubsection (iv).

It is recommended that in most casesstate court judges not be called upon todetermined whether or not a child'scontacts with a reservation are solimited that a case should not betransferred. This may be a validconsideration since the shock ofchanging cultures may, in some cases.be harmful to the child. Thisdetermination. however, can be made bythe parent, who has a veto over transferto tribal court.

This reasoning does not apply,however, where there is no parentavailable to make that decision. Theguidelines recommend that state courtsbe authorized to make suchdeterminations only in these caseswhere there is no parent available tomake it.

State court authority to make suchdecisions is limited to those cases wherethe child is over five years of age. Mostchildren younger than five years can beexpected to adjust more readily to achange in cultural environment

The fifth criterion has been retained.It is true that teenagers may make someunwise decisions, but it is also true thattheir judgment has developed to theextent that their views ought to be takeninto account in making decisions abouttheir lives.

The existence of a tribal court is madean absolute requirement for transfer of acase. Clearly, the absence of a tribalcourt is good cause not to ask the tribeto try the case. -

Consideration of whether or not thecase can be properly tried in tribal courtwithout hardship to the parties orwitnesses was included on the strengthof the section-by-section analysis in theHouse Report on the Act, which statedwith respect to the f 1911(b), "Thesubsection is intended to permit a Statecourt to apply to apply a modifieddoctrine of forum non conveniens, inappropriate cases. to insure that therights of the child as an Indian. theIndian parents or custodian. and thetribe are fully protected." Where a childis in fact living in a dangerous situation,he or she should not be forced to remainthere simply because the witnessescannot afford to travel long distances tocourt.

Application of this criterion will tendto limit transfers to cases involvingIndian chqdren who do not live very farfrom the reservation. This problem maybe alleviated in some instances byhaving the court come io the witnesses.The Department is aware of one caseunder that Act where transfer wasconditioned on having the tribal courtmeet in the city where the family lived.Some cities hay substantial populationsof members of tribes from distantreservations. In such situations sometribes may wish to appoint memberswho live in those cities as tribal judges.

The timeliness of the petition fortransfer, discussed at length in thecommentary to section C.1, is listed as afactor to be considered. Inclusion of thiscriterion is designed to encourage theprompt exercise of the right to petitionfor transfer in order to avoidunnecessary delays. Long periods ofuncertainty concerning the future are

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generally regarded as harmful to thewell-being of children. For that reason, itis especially important to avoidunnecessary delays in child custodyproceedings.

Alniost all commenters favoredretention of the paragraph stating thatreservation socio-economic conditionsand the perceived adequacy of tribalinstitutions are not to be taken intoaccount in making good causedeterminations. Some commenters didsuggest, however, that a case not betransferred if it is clear that a particulardisposition of the case that could only.be made by the state court heldespecially great promise of benefitingthe child.

Such considerations are important butthey have not been listed because theDepartment believes such judgments arebest made by tribal courts. Parties whobelieve that state court adjudicationwould be better for such reasons canpresent their reasons to the tribal courtand urge it to decline jurisdiction. TheDepartment is aware of one case underthe Act where this approach is beingused and believes it is more in keepingwith the confidence Congress hasexpressed in tribal courts.

Since Congress has established apolicy of preferring tribal control overcustody decisions affecting tribalmembers. the burden of proving that anexception to that policy ought to bemade in a particular case rests on theparty urging that an exception be made.This rule is reflected in subsection (d).C.4. Tribal Court Declination of Transfer

(a)A tribal court to which transfer isrequested may decline to accept suchtransfer.

(b)Upon receipt of a transfer petitionthe state court shall notify the tribalcourt in writing of the proposed transfer.The notice shall state how long thetribal court has to make its decision. Thetribal court shall have at least twentydays from the receipt of notice of aproposed transfer to decide whether todecline the transfer. The tribal courtmay inform the state court of itsdecision to decline either orally or inwriting.

(c)Parties shall file with the tribalcourt any arguments they wish to makeeither for or against tribal declination oftransfer. Such arguments shall be madeorally in open court or in writtenpleadings that are served on all otherparties.

(d) If the case is transferred the statecourt shall provide the tribal court withall available information on the case.

CL CommentaryThe previous version of this section

provided that the state court shouldpresume the tribal court has declined toaccept jurisdiction unless it hearsotherwise. The comments on this isiuewere divided. This section has been .revised to require the tribal court todecline the transfer affirmatively if itdoes not wish to take the case. Thisapproach is in keeping with theapparent intent of Congress. Thelanguage in the Act providing thattransfers are "subject to declination bythe tribal court" indicates thataffirmative action by the tribal court isrequired to decline a transfer.

The recommended time limit for adecision has been extended from ten totwenty days. The additional time leneeded for the court to become apprisedof factors it may want to consider indetermining whether or not to declinethe transfer.

A new paragraph has been addedrecommending that the parties assist thetribal court in making its decision ondeclination by giving the tribal courttheir views on the matter.

Transfers ought to be arranged assimply as possible consistent with dueprocess. Transfer procedures are a goodsubject for tribal-state agreements under25 U.S.C. f 1919. -

D. Adjudication of InvoluntaryPlacements, Adoptions, or Terminationsor Terminations of Parental Rights

DI. Access to ReportsEach party to a foster care placement

or termination of parental rightsproceeding under State law involving anIndian child has the right to examine allreports or other documents filed withthe court upon which any decision withrespect to such action may be based. Nodecision of the court shall be based onany report or other document not filedwith the court.D.1. Commentary

The first sentence merely restates thestatutory language verbatim. The secondsentence makes explicit the implicitassumption of Congress—that the courtwill limit its considerations to thosedocuments and reports that have beenfiled with the court.D.2. Efforts To Alleviate Need ToRemove Child From Parents or IndianCustodians

Any party petitioning a state court forfoster care placement or termination ofparental rights to an Indian child mustdemonstrate to the court that prior to thecommencement of the proceeding activeefforts have been made to alleviate the

need to remove the Indian child from hisor her parents or Wise custodians.These efforts shall take into account theprevailing social end mdturel conditionsand way of life of the Indian child'stribe. They shall also involve and wethe available resources of the extendedfamily, the tribe, Indian social serviceagencies and individual Indian caregivers.D.2. Commentary

This section elaborates on themeaning of "breakup of the Indianfamily" as used in the Act. "Familybreakup" is sometimes used as asynonym for divorce. In the context ofthis statute, however. it is clear thatCongress meant a situation in which thefamily is =able or =willing to raise thechild in a manner that is not likely toendanger the child's emotional orphysical health, -

This section also recommends that thepetitioner take into account the cultureof the Indian child's tribe and use theresources of the child's extended familyand tribe in attempting to help thefamily function successfully as a homefor the child. The term "individualIndian care givers" refers to medicinemen and other individual tribalmembers who may have developedspecial skills that can be used to helpthe child's family succeed.

One commenter recommended thatdetailed procedures and criteria beestablished in order to determinewhether family support efforts had beenadequate. Establishing such proceduresand requirements would involve thecourt in second-guessing theprofesaional judgment of social service "agencies. The Act does not contemplatesuch a role for the Courts and theygenerally lack the expertise to makesuch judgments.D.3. Standards of Evidence

(a) The court may not issue an ordereffecting a foster care placement of anIndian child unless clear and convincingevidence is presented. including thetestimony of one of more qualifiedexpert witnesses, demonstrating that thechild's continued custody with thechild's parents of Indian custodian islikely to result in serious emotional orphysical damage to the child.

(b)The .court may not order atermination of parental rights unless thecourt's order is supported by evidencebeyond a reasonable doubt, includingthe testimony of one or more qualifiedexpert witnesses, that continuedcustody of the child by the parent orIndian custodian is likely to result inserious emotional or physical damage tothe child.

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(c) Evidence that onbr shows theexistence of COMPOUND], or fermilypoverty, crowded or Inadequatehoming, alcohol abuse, or newconforming social behavior doss notemanate clear and conviscing evideacethat continual custody le Moly le resultin serious emotional or physical damageto the child. To be deer eal osetvimoi ng,.the evidence must show the existence ofparticular coaditions in the home thatere likely to result it serious emotionalor physical damage to the particularchild who is the subject of theproceedieg. The evidence must show thecausal relatiosehip between thecooditions that exist and the damagethat is likely to result

0.3. Comment-re

The first two paragraphs areessentially restatement of the statutorylanguage. By imposing these standards,Congress has changed the rides of lawof many states with respect to theplacement of Indian childnra. A childmay not be removed simply becamethere is 11011140110 else willing to raise thechild who is likely to do a better job orthat it would be "in the best interests ofthe child" for him or her to live withsomeone sine. Neither can a placementor termination of parental rights beordered simply based on adetermination that the parents orcustodians are "unfit parents." It mustbe shown that it is shown that it isdangerous for the child-to remain withhis or her present custodians. Evidenceof that must be "clear and convincing"for placements and "beyond areasonable doubt" for terminations.

The legislative history of the Actmakes it pervasively clear that Congressattributes many unwarranted removalsof Indian children to cultural bias on thepart of the courts and social workersmaking the decisions. In many caseschildren were removed merely becausethe family did not conform to thedecision-maker's stereotype of what aproper family should be—without anytesting of the implicit assumption thatonly a family that conformed to thatstereotype could successfully raisechildren. Subsection (c) makes it clearthat mere non-conformance with suchstereotypes or the existence of otherbehavior or conditions that areconsidered bad does not justify aplacement or termination under thestandards imposed by Congress. Thefocus must be on whether the particularconditions are likely to cause seriousdamage.

0.41. Qualified Expert Witnesses

(a) Removal of an Indian child fromhis or her family must be based on

competent testimony from one or moreexperts qualified to speak specifically tothe issue of whether continued custodyby the parents or Indian custodians islikely to result in serious physical oremotional damage to the child.

(b) Persons with the followingcharacteristics are most likely to meetthe requirements for a qualified expertwitness for purposes of Indian childcustody proceedings:

(i) A member of the Indian child'stribe who is recognized by the tribalcommunity as lutowiedgeabk in tribalcustoms as they pertain to family _organization and childrearing practices.

(ii) A lay expert witness havingsubstantial experience in the delivery ofchild and family services to Indians, andextensive knowledge of prevailing socialand cultural standards and childrearingpractices within the Indian child's tribe.

(iii) A professional person havingsubstantial education and experience inthe area of his or her specialty.

(c) The court or any party may requestthe assistance of the Indian tribeor the Bureau of Indian Affairs agencyserving the Indian child's tribe inlocating persons qualified to serve asexpert witnesses.

0.4 Commentary

The first subsection is intended topoint oat that the issue on whichqualified expert testimony is required isthe question of whether or not seriousdamage to the child is likely to occur ifthe child is not removed. Basically twoquestions are involved. First, is it likelythat the conduct of the parents willresult in serious physical or emotionalharm to the child? Second, if suchconduct will likely cause such harm, canthe parents be persuaded to modify theirconduct?

The party presenting an expertwitness must demonstrate that thewitness is qualified by reason ofeducational background and priorexperience to make judgments on thosequestions that are substantially morereliable than judgments that would bemade by nonexperts.

The second subsection makes clearthat knowledge of tribal culture andchildrearing practices will frequently bevery valuable to the court. Determiningthe likelihood of future harm frequentlyinvolves predicting future behavior—which is influenced to a large degree byculture. Specific behavior patterns willoften need to be placed in the context ofthe total culture to determine whetherthey are likely to cause seriousemotional harm.

Indian tribes and Bureau of IndianAffairs personnel frequently knowpersons who are knowledgeable

concerning the customs and cultures ofthe tribes they serve. Their assistance isavailable in helping to locate suchwitnesses.

E. Voluntary Proceedings

E.1, Execution of Consent

To be valid. consent to a voluntarytermination of parental rights oradoption meet be executed in writingand recorded before a judge ormagistrate of a court of competentjurisdiction. A certificate of the courtmust accompany any consent and must .certify that the terms and consequencesof the consent were explained in detailand in the language of the parent orIndian custodian, if English is not theprimary language, and were fullyu- lorstood by the parent or Indiancustodian. Execution of consent neednot be in open court whereconfidentiality is requested or indicated.

E.1. Commentary

This section provides that consentmay be executed before either a judge ormagistrate. The addition of magistrateswas made in response to a suggestionfrom Alaska where magistrates arefound in most small communities but"judges" are more widely scattered. Theterm "judge" as used in the statute is nota term of art and can certainly beconstrued to include judicial officerswho are called magistrates in somestates. The statement that consent neednot be in open court whereconfidentiality is desired or indicatedwas taken directly from the HouseReport on the Act. A recommendationthat the guideline list the consequencesof consent that must be described to theparent or custodian has not beenadopted because the consequences canvary widely depending on the nature ofthe proceeding, state law and theparticular facts of individual cases.

E.2. Content of Consent Document

(a) The consent document shallcontain the name and birthdate of theIndian child, the name of the Indianchild's tribe, any identifying number orother indication of the child'smembership in the tribe, if any, and thename and address of the consentingparent or Indian custodian.

(b) A consent to foster care placementshall contain, in addition to theinformation specified in (a), the nameand address of the person or entity by orthrough whom the placement wasarranged, if any, or the name andaddress of the prospective fosterparents, if known at the time.

(c) A consent to termination ofparental rights or adoption shall contain,

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in addition to the Information specifiedin (a), the name and address of theperson or entity by or through whomany preadoptive or adoptive placementhas been or is to be arranged.E.Z. Commentary

This section specifies the basicinformation about the placement ortermination to which the parent orIndian custodian is consenting to assurethat consent is knowing and also todocument what took place.E.S. Withdrawal of Consent to

_ PlacementWhere a parent or Indian custodian

has consented to a foster careplacement under state law, such consentmay be withdrawn at any time by filing,in the court where consent wasexecuted and filed, an instrumentexecuted by the parent or Indiancustodian. When a parent or Indiancustodian withdraws consent to fostercafe placement, the child shall as soonas is practicable be returned to thatparent or Indian custodian.E.3. Commentary

This section specifies that withdrawalof consent shall be filed in the samecourt where the consent document itselfwas executed.E.4. Withdrawal of Consent toAdoption

A consent to termination of parentalrights or adoption may be withdrawn bythe parent at any time prior to entry of afinal decree of voluntary termination or

_ adoption by filing in the court where. the _consent is filed an instrument executedunder oath by the parent stipulating hisor her intention to withdraw suchconsent. The clerk of the court wherethe withdrawal of consent is filed shallpromptly notify the party by or throughwhom any preadoptive or adoptiveplacement has been arranged of suchfiling and that party shall insure thereturn of the child to the parent as soonas practicable.

E.4. CommentaryThis provision recommends that the

clerk of the court be responsible fornotifying the family with whom the childhas been placed that consent has beenwithdrawn. The court's involvementfrequently may be necessary since thebiological parents are often not told whothe adoptive parents are.F. Dispositions

F.1. Adoptive Placements(a) In any adoptive placement of an

Indian child under state law preferencemust be given (in the order listed below)

absent good cause to the contrary, toplacement of the child with:

(I) A member of the child's extendedfamily;

(U) Other members .of the Indianchild's tribe; or

(iii) Other Indian families, includingfamilies of singlets.

(b)The Indian child's tribe mayestablish a different order of preferenceby resolution. That order ofiereferencemust be followed so long as placementis the least restrictive settingappropriate to the child's needs.

(c) Unless a consenting parentevidences a desire for anonymity, thecourt orlooney shall notify the child'sextended family and the Indian child'stribe that their members will be givenpreference in the adoption decision.F.1.: Commentary

This section makes clear that -preference shall be given in the-orderlisted in the Act. The Act clearlyrecognizes the role of the child'sextended family in helping to raisechildren. The extended family should belooked to first when it becomesnecessary to remove the child from thecustody of his or her parents. Because ofdifferences in cultures among tribes,placement within the same tribe ispreferable.

This section also provides that singleparent families shall be considered forplacements. The legislative history ofthe Act makes it clear that Congressintended custody decisions to be madebased on a consideration of the presentor potential custodian's ability toprovide the necessary care, supervisionand support for the child rather than onpreconceived notions of proper familycomposition.

The third subsection recommends thatthe court or agent make an active effortto fund out if there are families entitledto preference who would be willing to.adopt the child. This provisionrecognizes, however, that the consentingparent's request for anonymity takesprecedence over efforts to find a homeconsistent with the Act's priorities.

F.2. Foster Care or PreadoptivePlacements

In any foster care or preadoptiveplacement of an Indian child:

(a) The child must be placed in theleast restrictive setting which

(i) most approximates a family;(ii) in which his or her special needs

may be met; and(iii) which is in reasonable proximity

to his or her home.(b) Preference must be given in the

following order, absent good cause tothe contrary, to placement with:

(I) A member of the Indian child'sextended family;

(11) A foster home. licensed, approvedor specified by the Indian child's tribe,whether on or off the reservation;

(iii) An Whim foster home licensed orapproved by an authorized non-Indianliosnehm authority; or

(iv) An institution for childrenapproved by yr Indies tribe or operatedby an Indian organization which has aprograie suitable to meet the child'sneeds.

(c) The Indian child's tribe mayestablish *different order of preferenceby resolution.end that order ofpreference shall be followed so long asthe criteria enumerated in stsbeection (a)are met.

F.2. CommentaryThis gaideline simply restates the

provisions of the Act.F.3. Good Cause To Modify Preferences

(a) For purposes of foster care.preadoptive or adoptive placement, adetermination of good cause sot tofollow the order of preference set outabove shall be based on one or more ofthe following consideration=

(I) The request of the biologicalparents or the child when the child is ofsufficient age.

(ii) The extraordinary physical oremotional needs of the child asestablished by testimony of a- qualifiedexpert witness.

The unavailability of suitable.families for placement after a diligentsearch has been completed for familiesmeeting the preference criteria.

(b) The burden of establishing theexistence of good cause not to followthe order of preferences established insubsection (b) shall be on the partyurging that the preferences not befollowed.

F.3. CommentaryThe Act indicates that the court is to

give preference to confidentialityrequests by parents in makingplacements. Paragraph (i) is intended topermit parents to ask that the order ofpreference not be followed because itwould prejudice confidentiality or forother reasons. The wishes of an olderchild are important in making aneffective *cement.

In a few cases a child may needhighly specialized treatment servicesthat are unavailable in the communitywhere the families who meet thepreference criteria live. Paragraph (ii)recommends that such considerations beconsidered as good cause to thecontrary.

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Federal Register / Vol. 44, No. 228 Monday, November 28, 1979 1 Notices

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Paragraph (ill) recommends that adiligent attempt to find a suitable familymeeting the preference criteria be rudebefore consideration of i& non-preference.iaceraent be considered. A diligent

attempt to find a suitable familyincludes at a minimum, contact with thechild's tribal social service program, asearch of all county nr state listings ofavailable Indian homes and contactwith nationally known Indian programswith available placement resources.

Since Congress has established aclear preference for placements withinthe tribal culture, it is recommended insubsection (b) that the party urging anexception be made be required to bearthe burden of proving and exception isnecessary.

C. Post-Trial Rights

GA. Petition To Vacate Adoption(a) Within two years after a final

decree of adoption of any Indian childby a state court, or within any longerperiod of time permitted by the law ofthe state, a parent who executed aconsent to terminationof paternat rightsor adoption of that child may petitionthe court in which the final adoptiondecree was entered to vacate the decreeand revoke the consent on the groundsthat such consent was obtained by fraudor duress.

(b] Upon the filing of such petition, thecourt shall give notice to all parties tothe adoption proceedings and shallproceed to hold a hearing on thepetition. Where the court finds that theparent's consent was obtained throughfraud or duress, it must vacate thedecree of adoption and order theconsent revoked and order the childreturned to the parent.G.1. Commentary

This section recommends that thepetition to vacate an adoption bebrought in the same court in which thedecree was entered, since that courtdearly has jurisdiction, and witnesseson_the issue of fraud or duress are mostlikely to be within its jurisdiction.

G.2. Adult Adoptee Rights(al Upon application by an Indian

individual who has reached age 18 whowas the subject of an adoptiveplacement. the court which entered thefinal decree must inform such individualof the tribal affiliations. if any of theindividual's biological parents andprovide such other informationnecessary to protect any rights flowingfrom the individual's tribal relationship.

(b) The section applies regardless ofwhether or not the original adoptionwas subject to the provisions of the Act.

(c) Where state law prohibitsrevelation of the identity of thebiological parent, assistance of theBureau of Indian Affairs shall be soughtwhere necessary to help an adopteewho is eligible for membership in a tribeestablish that right without breachingthe confidentiality of the record.G.2. Commentary

Subsection (b) makes clear thatadoptions completed prior to May 7,1979, are covered by this provision. TheAct states that moot portions of Title Ido not "affect a proceeding under Statelaw" initiated or completed prior to May7, 1979. Providing information to anadult adoptee, however, cannot be saidto affect the proceeding by which theadoption was ordered.

The legislative history of the Actmakes it clear that this Act was notinte.eded to supersede the decision ofstate legislatures on whether adultadoptees may be told the names of theirbiological parents. The intent is simplyto assure the protection of rightsderiving from tribal membership. Wherea state law prohibits disclosure of theidentity of the biological parents. tribalrights can be protected by asking theBIA to check confidentially whether theadult adoptee meets the requirementsfor membership in an Indian tribe. If theadoptee does meet those requirements,the BIA can certify that fact to theappropriate tribe.

G.3. Notice of Change in Child's Status(a) Whenever a final decree of

adoption of an Indian child has beenvacated or set aside. or the adoptiveparent has voluntarily consented to thetermination of his or her parental rightsto the child or whenever an Indian childis removed from a foster care home orinstitution for the purpose of furtherfoster care. preadoptive placement, oradoptive placement, notice by the courtor an agency authorized by the courtshall be given to the child's biologicalparents or prior Indian custodians. Suchnotice shall inform the recipient of his orher right to petition for return of custodyof the child.

(b) A parent or Indian custodian maywaive his or her right to such notice byexecuting a written waiver of noticefiled with the court Such waiver may berevoked at any time by filing with thecourt a written notice of revocation, butsuch revocation would not affect anyproceeding which occurred before thefiling of the notice of revocation.G.3. Commentary

This section provides guidelines to aidcourts in applying the provisions ofSection 106 of the Act. Section 106 gives

legal standing to a biological parent orprior Indian custodian to petition forreturn of a child in cases of failedadoptions or changes in placement insituations where there has been atermination of parental rights. Section108(b) provides the whenever an Indianchild is removed from a foster carehome or institution for the purpose offurther foster care, preadoptiveplacement, or adoptive placement, suchplacement is to be in accordance withthe provisions of the Act—whichrequires notice to the biological parents.

The Act is silent on the question ofwhether a parent or Indian custodiancan waive the right to further notice.Obviously, there will be cases in whichthe biological parents will prefer not toreceive notice once their parental rightshave teen relinquished or terminated.This section provides for such waiversbut, because the Act establishes anabsolute right to participate in anyfuture proceedings and to petition thecourt for return of the child, the waiveris revocable.

GA. Maintenance of RecordsThe state shall establish a single

location where all records of everyfoster care, preadoptive placement andadoptive placement of Indian childrenby courts of that state will be availablewithin seven days of a request by anIndian child's tribe or the Secretary. Therecords shall contain, at a minimum, thepetition or complaint, all substantiveorders entered in the proceeding, andthe complete record of the placementdetermination.G.4. Commentary

This section of the guidelines providesa procedure for implementing theprovisions of 25 U.S.C. 1 1915(e). Thissection has been modified from theprevious version which required that allrecords be maintained in a singlelocation within the state. As revised thissection provides only that the records beretrievable by a single office that wouldmake them available to the requesterwithin seven days of a request. Forsome states (especially Alaska)centralization of the records themselveswould create major administrativeburdens. So Iong as the records can bepromptly made available at a singlelocation, the intent of this section thatthe records be readily available will besatisfied.Forrest I. Gaud.Assistant Secretary. Indian Affairs.November 16.1979.(FR Doc. 71.-26231 Filed 11-Z3-791 8.45 ern]DEMO CODE 4310-02-M

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