Resources - A Practical Guide to the Indian Child Welfare Act; Native American Rights Fund

Or. Admin. R. 413-070-0170

OREGON ADMINISTRATIVE RULES COMPILATION

CHAPTER 413. DEPARTMENT OF HUMAN SERVICES, CHILD WELFARE PROGRAMS

DIVISION 70. SUBSTITUTE CARE

PLACEMENT OF INDIAN CHILDREN

413-070-0170 ICWA Procedures at Initial Contact

This section presents the initial steps to follow in providing services and taking legal action for child custody proceedings covered by the ICWA.

(1) Determination of Indian Status:

(a) Oral inquiry shall be made in every case which involves or could involve changes in custody to determine whether the case involves an Indian child. Agency staff shall routinely request racial/ethnic data of parents or guardian by reading aloud from the intake form the racial/ethnic categories for the client's self-identification. If the child's parents are unavailable or unable to provide a reliable answer regarding the Indian heritage of their child, agency staff shall consider the following in determining a child's Indian heritage: A thorough review of all documentation in the file (including contact with previous caseworkers, if any);

(A) Close observation of the child's physical characteristics and the physical characteristics of parents, as well as other siblings or relatives accompanying the child;

(B) Consultation with relatives/collaterals providing information which suggests the child/parent may be Indian;

(C) Examination of any other information bearing on the determination of the child's Indian heritage, such as communication from other sources including Indian tribes and organizations;

(b) If, in following the above steps, information obtained suggests the child may be of Indian heritage but the tribe cannot be determined, staff shall contact the agency ICWA Manager to determine if:

(A) The birth place of the child/parent, or the current/former residence of the child/parent is known to be a common residence of Indian families;

(B) The surname of the child/parent is one which is known to be common among members of Indian tribes.

(2) Determination of Indian Tribe. If it appears the child is of Indian heritage, the service worker must determine the tribe in which the child is a member or eligible for membership. Agency staff shall ask the child's parents or custodian tribe(s) the child may be affiliated. If this inquiry does not provide the necessary information, agency staff shall, at a minimum, contact the following:

(a) Relatives and extended family members;

(b) Indian tribes and organizations in Oregon, such as the Commission on Indian Services;

(3) ICWA Eligibility. For a child to be considered an Indian under the Act, the child must be:

(a) An unmarried person under the age of eighteen; and

(b) A person who is either: a member of an Indian tribe, or eligible for membership in an Indian tribe and the biological child of a member of an Indian tribe;

(c) In order for the worker to determine if the child is a tribal member or eligible for membership, the tribe or possible tribes identified must be contacted.

(4) Tribal Membership:

(a) A tribal determination of membership is conclusive because each tribe defines the criteria for membership in the tribe and determines who meets those criteria. Inquiries to the tribe must be sent "Return Receipt Requested" to a membership committee, an enrollment clerk, or individual who is accustomed to responding to questions about tribal membership. If the tribe does not respond, agency staff shall contact the tribe by telephone. The service worker may request that all information given be treated confidentially.

(b) If the child is a member of one tribe and eligible for membership in others, the tribe of actual membership is the child's tribe. If the child is not now a member of a tribe, the service worker must ascertain whether the child is eligible for membership and is the biological child of a member of an Indian tribe. To do this, the service worker shall:

(A) Ask the child (if old enough to respond);

(B) Ask the parent(s) or relatives, including in-laws, as appropriate;

(5) BIA Assistance. If the tribe does not respond to a letter sent "Return Receipt Requested" and cannot be reached by phone, the service worker shall write or call the Bureau of Indian Affairs Area (local) Office and the ICWA Manager for assistance.

(6) Out-of-State Tribes. When an Indian child is a member of or eligible for membership in a tribe located in another state, the Act still applies and all applicable provisions, including provisions governing notification of the tribe, must be followed.

(7) Multi-Tribal Membership:

(a) The child may be eligible for membership in more than one tribe. In that case the Indian child's tribe is the tribe with which the child has the most significant contacts. In considering with which tribe the child has the most significant contacts, the service worker shall investigate:

(A) The length of residence on or near the reservation of each tribe and the frequency of contacts with each tribe;

(B) The child's participation in activities of each tribe;

(D) Whether there has been a previous adjudication with respect to the child by a court of one of the tribes;

(E) Residence on or near one of the tribes' reservation of the child's relatives;

(F) Tribal membership of custodial parent or Indian custodian;

(G) Interest asserted by each tribe in response to the notice specified in OAR 413-070-0210.

(b) Documentation of such investigation shall be submitted to the court so that it can consider the comparative interests of each tribe in the child's welfare in making its decision on the matter.

(8) Enrollment of Indian Clients. If the child is not a member of his or her tribe, but is applying to become a member, the service worker shall proceed as though the child is a member and follow the requirements of the Act. Agency staff shall assist the family in filling out and returning required paperwork to the appropriate tribe and, as necessary, counsel parents hesitant to enroll a child by emphasizing the positive benefits of tribal enrollment/membership.

(9) ICWA Not Applicable. Once determined, tribal status should be clearly documented in the case record, along with the date and source of documentation. An Indian child who is officially determined by the tribe not to be a member nor eligible for membership is not subject to the requirements of the Indian Child Welfare Act. In such cases, agency staff shall:

(a) Document in the case record steps taken to determine the child's Indian/tribal ancestry and the tribe's written statement declaring the child ineligible for membership;

(b) Incorporate in any court hearing the tribe's written statement declaring the child ineligible for membership.

(10) Cultural Heritage Protection. In instances where the ICWA does not apply, but the child is biologically an Indian or considered an Indian by the Indian community, the agency shall respect the child's right to participate in the culture of origin in case planning, particularly if such child is identifiably Indian by physical features and/or social relationship.

Stat. Auth.: ORS 418.005

Stats. Implemented: 25 USC §1901

Hist.: SCF 6-1995, f. 12-22-95, cert. ef. 12-29-95; SOSCF 41-2001, f. 12-31-01, cert. ef. 1-1-02