General Provisions

A.1 Regulation

23.106 - How does this subpart interact with State and Federal laws?

1. The regulations in this subpart provide minimum Federal standards to ensure compliance with ICWA.
2. Under section 1921 of ICWA, where applicable State or other Federal law provides a higher standard of protection to the rights of the parent or Indian custodian than the protection accorded under the Act, ICWA requires the State or Federal court to apply the higher State or Federal standard.

A.1 Guidelines

ICWA establishes the minimum procedural and substantive standards that must be met, regardless of State law. The regulations provide a binding, consistent, nationwide interpretation of ICWA’s minimum standards. ICWA displaces State laws and procedures that are less protective.¹⁴

Many States have their own laws applying to child welfare proceedings involving Indian children that establish protections beyond the minimum Federal standards. In those instances, the more protective State law applies. For example, the Federal ICWA does not require notice requirements in voluntary child custody proceedings (although such notice is a recommended practice). Some States have passed laws that do require notice in voluntary proceedings and that higher standard of protection would apply.

A.2 Regulation

(The statute (at 25 U.S.C 1919) specifies that the Tribe and State may enter into an agreement. The regulation makes clear that the mandatory dismissal provisions in 23.110 are “[s]ubject to 25 U.S.C. 1919 (Agreements between States and Indian Tribes).”)

A.2 Guidelines

Some States and Tribes have entered into negotiated Tribal-State agreements that establish specific procedures to follow in Indian child custody proceedings. The Department strongly encourages both Tribes and States to enter into these cooperative agreements. The statute makes clear these agreements can address the “care and custody of Indian children and jurisdiction over child custody proceedings” and specifically can include agreements that provide for the orderly transfer of jurisdiction on a case-by-case basis and agreements that provide for concurrent jurisdiction between States and Indian tribes. 25 U.S.C. 1919. The regulation provides, for example, that the mandatory dismissal provisions in 23.110 do not apply if the State and Tribe have an agreement regarding the jurisdiction whereby the Tribes choose to refrain from asserting jurisdiction. Such agreements can also address how States notify Tribes in emergency removal and initial State hearings, financial arrangements between the Tribe and State regarding care of children, mechanisms for identifying and recruiting appropriate placements and other similar topics.

A.3 Regulation

23.133 - Should courts allow participation by alternative methods?

If it possesses the capacity, the court should allow alternative methods of participation in the State-court child custody proceedings involving an Indian child, such as participation by telephone, videoconferencing, or other methods.

A.3 Guidelines

Section 23.133 encourages State courts to permit alternative means of participation in Indian child custody proceedings, such as by phone or video. This enables the court to receive all relevant information regarding the child’s circumstances, and also minimizes burdens on Tribes and other parties. Several State court systems permit the use of video-conferencing in various types of proceedings.¹⁵ The Department notes that requesting statements under oath, even by teleconference, as to who is present may provide sufficient safeguards to maintain control over who is present on the teleconference for the purposes of confidentiality. A service such as Skype would be included in “other methods.”

This issue may be particularly relevant to a Tribe’s participation in a case. A Tribe’s members may live far from the Tribal reservation or headquarters and the Indian child’s Tribe may not necessarily be located near the State court Indian child custody proceeding. As such, it may be difficult for many Tribes to participate in State court proceedings, particularly where those actions take place outside of the Tribe’s State. Allowing alternative methods of participation in a court proceeding can help alleviate that burden.

Another barrier to Tribal participation in State court proceedings is that the Tribe may not have an attorney licensed to practice law in the State in which the Indian child custody proceeding is being held. Many tribes have limited funds to hire local counsel. The Department encourages all State courts to permit Tribal representatives to present before the court in ICWA proceedings regardless of whether they are attorneys or attorneys licensed in that State, as a number of State courts have already done.¹⁶

14 See, e.g., In re Adoption of M.T.S., 489 N.W. 2d 285, 288 (Minn. Ct. App. 1992) (ICWA preempted Minnesota State law because State law did not provide higher standard of protection to the rights of the parent or Indian custodian of Indian child). 15 See, e.g., National Center for State Courts Video Technologies Resource Guide (available at www.ncsc.org/Topics/Technology/Video-Technologiesw/Resource-Guide.aspx). 16 See, e.g., J.P.H. v. Fla. Dep’t of Children & Families, 39 So.3d 560 (Fla. Dist. Ct. App.2010)(per curiam); State v. Jennifer M. (In re Elias L.), 767 N.W.2d 98, 104 (Neb. 2009); In re N.N.E., 752 N.W. 2d 1, 12 (Iowa 2008); State ex rel. Juvenile Dep’t of Lane Cty. v. Shuey, 850 P.2d 378 (Or. Ct. App. 1993).