Notice

D.1 Regulation

23.11 Notice

(a) In any involuntary proceeding in a State court where the court knows or has reason to know that an Indian child is involved, and where the identity and location of the child’s parent or Indian custodian or Tribe is known, the party seeking the foster-care placement of, or termination of parental rights to, an Indian child must directly notify the parents, the Indian custodians, and the child’s Tribe by registered or certified mail with return receipt requested, of the pending child-custody proceedings and their right of intervention. Notice must include the requisite information identified in 23.111, consistent with the confidentiality requirement in 23.111(d)(6)(ix). Copies of these notices must be sent to the appropriate Regional Director listed in paragraphs (b)(1) through (12) of this section by registered or certified mail with return receipt requested or by personal delivery and must include the information required by 23.111.

(b) [See Appendix 1]

(c) Upon receipt of the notice, the Secretary will make reasonable documented efforts to locate and notify the child’s Tribe and the child’s parent or Indian custodian. The Secretary will have 15 days, after receipt of the notice, to notify the child’s Tribe and parents or Indian custodians and to send a copy of the notice to the court. If within the 15-day period the Secretary is unable to verify that the child meets the criteria of an Indian child as defined in 23.2, or is unable to locate the parents or Indian custodians, the Secretary will so inform the court and state how much more time, if any, will be needed to complete the verification or the search. The Secretary will complete all research efforts, even if those efforts cannot be completed before the child-custody proceeding begins.

(d) Upon request from a party to an Indian child-custody proceeding, the Secretary will make a reasonable attempt to identify and locate the child’s Tribe, parents, or Indian custodians to assist the party seeking the information.

23.111 - What are the notice requirements for a child-custody proceeding involving an Indian child?

(a) When a court knows or has reason to know that the subject of an involuntary foster-care-placement or termination-of-parental-rights proceeding is an Indian child, the court must ensure that:

(1) The party seeking placement promptly sends notice of each such child custody proceeding (including, but not limited to, any foster-care placement or any termination of parental or custodial rights) in accordance with this section; and

(2) An original or a copy of each notice sent under this section is filed with the court together with any return receipts or other proof of service.

(b) Notice must be sent to:

(1) Each Tribe where the child may be a member (or eligible for membership if a biological parent is a member) (see 23.105 for information on how to contact a Tribe);

(2) The child’s parents; and

(3) If applicable, the child’s Indian custodian.

D. 1 Guidelines

Prompt notice of a child-custody proceeding is vitally important because it gives the parent, Indian custodian, and Tribe the opportunity to respond to any allegations in the case, to intervene, or to seek transfer jurisdiction to the Tribe. In addition, prompt notice facilitates the early identification of preferred placements as well as the provision of Tribal services to the family.

Notice by registered or certified mail, return receipt requested, to the parents, Indian custodian(s), and Indian child’s Tribe is required for:

• Any involuntary foster-care proceeding; or
• Any TPR proceeding.

Notice is required for a TPR proceeding, even if notice has previously been given for the child’s foster care proceeding.

This notice is required in addition to the informal contacts made with the Tribe, such as those to verify Tribal membership and open the lines of communication.

Notice by registered or certified mail, return receipt requested is not required for voluntary proceedings, pre-adoptive proceedings, or adoptive proceedings (all of which are defined by the rule), but is a recommended practice.

While not required by the Act or rule, we recommend that State agencies and/or courts provide notice to Tribes and parents or Indian custodians of:

• Each individual hearing within a proceeding;
• Any change in placement – the statute provides rights to parents, Indian custodians and Tribes (e.g., right to intervene) and a change in circumstances resulting from a change in placement may prompt an individual or Tribe to invoke those rights, even though they did not do so before;
• Any change to the child’s permanency plan or concurrent plan – a change in the ultimate goal may prompt an individual or Tribe to invoke their rights, even though they did not do so before;
• Any transfer of jurisdiction to another State or receipt of jurisdiction from another State.

D. 2 Regulation

23.111 - What are the notice requirements for a child-custody proceeding involving an Indian child?

…(c) Notice must be sent by registered or certified mail with return receipt requested. Notice may also be sent via personal service or electronically, but such alternative methods do not replace the requirement for notice to be sent by registered or certified mail with return receipt requested.

D. 2 Guidelines

The Act requires notice be provided by registered mail, return receipt requested. The regulation also allows for notice to be provided by certified mail, return receipt requested, as a less expensive option that better meets the underlying goal of effecting notice.³⁰

If State law requires actual notice or personal service, that may be a higher standard for protection of the rights of the parent or Indian custodian of an Indian child than is provided for in ICWA. In that case, meeting that higher standard would be required.³¹ Even in this case, it is a best practice to also provide notice by registered or certified mail, return receipt requested, because the return receipt provides documentation for the record that notice was received.

We encourage States to act proactively in contacting parents, custodians, and Tribes by phone, email, and through other means, in addition to sending registered or certified mail, so parties can begin gathering documents and making necessary decisions as early as practicable in the process. Tribes may agree to waive their right to challenge the adequacy of notice if the notice to the Tribe was sent by a means other than registered or certified mail (e.g., by e-mail), but may not waive or affect the statutory rights of parents or other parties to the case.

The statute and regulations require notice to the parents; a “parent” includes an unwed father that has established or acknowledged paternity. If, at any point, it is discovered that someone is a “parent,” as that term is defined in the regulations, that parent would be entitled to notice.

30 See 81 FR 38810-38811 (June 14, 2016). 31 See 25 U.S.C. 1921.

D.3 Regulations

23.111 - What are the notice requirements for a child-custody proceeding involving an Indian child?

… (d) Notice must be in clear and understandable language and include the following:

(1) The child’s name, birthdate, and birthplace;

(2) All names known (including maiden, married, and former names or aliases) of the parents, the parents’ birthdates and birthplaces, and Tribal enrollment numbers if known;

(3) If known, the names, birthdates, birthplaces, and Tribal enrollment information of other direct lineal ancestors of the child, such as grandparents;

(4) The name of each Indian Tribe in which the child is a member (or may be eligible for membership if a biological parent is a member);

(5) A copy of the petition, complaint, or other document by which the child custody proceeding was initiated and, if a hearing has been scheduled, information on the date, time, and location of the hearing;

(6) Statements setting out:

(i) The name of the petitioner and the name and address of petitioner’s attorney;

(ii) The right of any parent or Indian custodian of the child, if not already a party to the child-custody proceeding, to intervene in the proceedings.

(iii) The Indian Tribe’s right to intervene at any time in a State-court proceeding for the foster-care placement of or termination of parental rights to an Indian child.

(iv) That, if the child’s parent or Indian custodian is unable to afford counsel based on a determination of indigency by the court, the parent or Indian custodian has the right to court-appointed counsel.

(v) The right to be granted, upon request, up to 20 additional days to prepare for the child-custody proceedings.

(vi) The right of the parent or Indian custodian and the Indian child’s Tribe to petition the court for transfer of the foster-care-placement or termination-of-parental-rights proceeding to Tribal court as provided by 25 U.S.C. 1911 and 23.115.

(vii) The mailing addresses and telephone numbers of the court and information related to all parties to the child-custody proceeding and individuals notified under this section.

(viii) The potential legal consequences of the child-custody proceedings on the future parental and custodial rights of the parent or Indian custodian.

(ix) That all parties notified must keep confidential the information contained in the notice and the notice should not be handled by anyone not needing the information to exercise rights under ICWA.

D.3 Guidelines

The rule specifies the information to be contained in the notice in order for the recipients of a notice to be able to exercise their rights in a timely manner.

While notice and verification of Tribal membership are separate concepts (see section B.7 for verification), they can be accomplished through the same communication or separate communications. The BIA has a sample notice form posted at www.bia.gov as an example for States to consider if they are combining their notice and verification.

Confidentiality
While a petition may contain confidential information, providing a copy of the petition with notice to Tribes is a government-to-government exchange of information necessary for the government agencies’ performance of duties. See 81 FR 38811. The petition is necessary to provide sufficient information to allow the parents, Indian custodian and Tribes to effectively participate in the proceeding.

D.4 Regulations

23.11 - Notice

(a)…. Copies of these notices must be sent to the appropriate Regional Director listed in paragraphs (b)(1) through (12) of this section by registered or certified mail with return receipt requested or by personal delivery and must include the information required by 23.111.

D.4 Guidelines

Notice to the BIA may be provided by personal delivery in lieu of registered or certified mail with return receipt requested. To determine the appropriate BIA office to send the copy to, see the list of regional offices at 23.11(b) (available at Appendix 1). A copy of the notice must be sent to the BIA Regional Director even when the identity of the child’s parents, Indian custodian, and Tribes can be ascertained. No notices, except for final adoption decrees, are required to be sent to the BIA Central Office in Washington, DC.

D.5 Regulations

23.111 - What are the notice requirements for a child-custody proceeding involving an Indian child?

(a)….

…(2) An original or a copy of each notice sent under this section is filed with the court together with any return receipts or other proof of service.

D.5 Guidelines

If the agency or other party seeking placement voluntarily chooses to provide notice in other Indian child welfare proceedings where notice is not required by law, it is helpful to file a copy of the notice with the court so that the court record is as complete as possible.

D.6 Regulations

23.111 - What are the notice requirements for a child-custody proceeding involving an Indian child?

…(e) If the identity or location of the child’s parents, the child’s Indian custodian, or the Tribes in which the Indian child is a member or eligible for membership cannot be ascertained, but there is reason to know the child is an Indian child, notice of the child custody proceeding must be sent to the appropriate Bureau of Indian Affairs Regional Director (see www.bia.gov). To establish Tribal identity, as much information as is known regarding the child’s direct lineal ancestors should be provided. The Bureau of Indian Affairs will not make a determination of Tribal membership but may, in some instances, be able to identify Tribes to contact.

23.11 Notice

…(c) Upon receipt of the notice, the Secretary will make reasonable documented efforts to locate and notify the child’s Tribe and the child’s parent or Indian custodian. The Secretary will have 15 days, after receipt of the notice, to notify the child’s Tribe and parents or Indian custodians and to send a copy of the notice to the court. If within the 15-day period the Secretary is unable to verify that the child meets the criteria of an Indian child as defined in 23.2, or is unable to locate the parents or Indian custodians, the Secretary will so inform the court and state how much more time, if any, will be needed to complete the verification or the search. The Secretary will complete all research efforts, even if those efforts cannot be completed before the child-custody proceeding begins.

(d) Upon request from a party to an Indian child-custody proceeding, the Secretary will make a reasonable attempt to identify and locate the child’s Tribe, parents, or Indian custodians to assist the party seeking the information.

D.6 Guidelines

The party seeking foster-care placement or TPR has responsibility for providing notice. If that party cannot ascertain the identity or location of the parents, Indian custodian, or Tribes, it should contact the BIA Region and provide BIA with as much information as possible regarding potential Tribal affiliations. If the Region cannot assist the party, it can also contact the BIA’s central office in Washington, DC. See Appendix 1 for a list of BIA regional offices.

D.7 Regulations

23.112 - What time limits and extensions apply?

(a) No foster-care-placement or termination-of-parental-rights proceeding may be held until at least 10 days after receipt of the notice by the parent (or Indian custodian) and by the Tribe (or the Secretary). The parent, Indian custodian, and Tribe each have a right, upon request, to be granted up to 20 additional days from the date upon which notice was received to prepare for participation in the proceeding.

(b) Except as provided in 25 U.S.C. 1922 and 23.113, no child-custody proceeding for foster-care placement or termination of parental rights may be held until the waiting periods to which the parents or Indian custodians and to which the Indian child’s Tribe are entitled have expired, as follows:

(1) 10 days after each parent or Indian custodian (or Secretary where the parent or Indian custodian is unknown to the petitioner) has received notice of that particular child-custody proceeding in accordance with 25 U.S.C. 1912(a) and 23.111;

(2) 10 days after the Indian child’s Tribe (or the Secretary if the Indian child’s Tribe is unknown to the party seeking placement) has received notice of that particular child-custody proceeding in accordance with 25 U.S.C. 1912(a) and 23.111;

(3) Up to 30 days after the parent or Indian custodian has received notice of that particular child-custody proceeding in accordance with 25 U.S.C. 1912(a) and 23.111, if the parent or Indian custodian has requested up to 20 additional days to prepare for the child-custody proceeding as provided in 25 U.S.C. 1912(a) and 23.111; and

(4) Up to 30 days after the Indian child’s Tribe has received notice of that particular child-custody proceeding in accordance with 25 U.S.C. 1912(a) and 23.111, if the Indian child’s Tribe has requested up to 20 additional days to prepare for the child-custody proceeding.

(c) Additional time beyond the minimum required by 25 U.S.C. 1912 and 23.111 may also be available under State law or pursuant to extensions granted by the court.

D.7 Guidelines

These time limitations ensure that parents, Indian custodians, and the Tribe have time to determine whether a child is an Indian child and respond to and prepare for the proceeding.

Minimum time limit

As the rule states, no foster-care-placement or termination-of-parental-rights proceeding may be held until at least 10 days after receipt of the notice by the parent (or Indian custodian) and by the Tribe (or the Secretary).

Extensions

The parent, Indian custodian, and Indian child’s Tribe are entitled to one extension of up to 20 days for each proceeding. Any extension beyond the initial extension up to 20 days is subject to the State court’s rules and discretion.

Informal notification

Although the rule sets out the required elements of an ICWA notice, in order to ensure that the proceeding is held promptly, we encourage agencies to contact the Tribe and the parents as soon as there is sufficient information to identify a child who may be a member of or eligible for membership in that Tribe. While the timelines set out in the rule do not begin to run until the service of formal notice as required by the rule, the initial notification may nevertheless be helpful to allow the Tribe to confirm that the child is an Indian child and begin to gather information about the case.

D.8 Regulations

23.111 - What are the notice requirements for a child-custody proceeding involving an Indian child?

…(f) If there is a reason to know that a parent or Indian custodian possesses limited English proficiency and is therefore not likely to understand the contents of the notice, the court must provide language access services as required by Title VI of the Civil Rights Act and other Federal laws. To secure such translation or interpretation support, a court may contact or direct a party to contact the Indian child’s Tribe or the local BIA office for assistance in locating and obtaining the name of a qualified translator or interpreter.

D.8 Guidelines

If the parent or Indian custodian requires translation or interpretation in a Native language, it is recommended that the court or party contact the Indian child’s Tribe or BIA for assistance.

D.9 Regulations

23.111 - What are the notice requirements for a child-custody proceeding involving an Indian child?

…(g) If a parent or Indian custodian of an Indian child appears in court without an attorney, the court must inform him or her of his or her rights, including any applicable right to appointed counsel, right to request that the child-custody proceeding be transferred to Tribal court, right to object to such transfer, right to request additional time to prepare for the child-custody proceeding as provided in 23.112, and right (if the parent or Indian custodian is not already a party) to intervene in the child-custody proceedings.

D.9 Guidelines

This provision recognizes that parents may not have appointed counsel at early hearings in the case, and helps ensure that parents are notified of their rights under Federal law. It is a recommended practice, where possible, to appoint the same counsel for the entirety of the trial court case (throughout all proceedings), to ensure parents’ rights are addressed consistently throughout the trial court case, rather than appointing different representatives at each stage.

D.10 Regulations

See 23.11 and 23.111 - requiring notice of each proceeding.

D.10 Guidelines

If the Tribe does not respond to the notice, or responds that it is not interested in participating in the proceeding, the court or agency must still send the Tribe notices of subsequent proceedings for which notice is required (i.e., a subsequent TPR proceeding). In cases where the Tribe does not confirm receipt of the required notice or otherwise does not respond, the Department recommends following up telephonically. The Tribe may decide to intervene or otherwise participate at a later point even if it has previously indicated it is not interested in participating.

Alaska Region

Alaska Regional Director, Bureau of Indian Affairs
Human Services
3601 C Street, Suite 1100 
Anchorage, Alaska 99503;

Phone: (907) 271-4111

Follow this link for information pertaining to ICWA contacts for the Tribes served by the Alaska Region.

Eastern Region

Eastern Regional Director 
545 Marriott Drive, Suite 700
Nashville, TN 37214

Phone: (615) 564-6700 
Fax: (615) 564-6701

Follow this link for information pertaining to ICWA contacts for the Tribes served by the Eastern Region.

Eastern Oklahoma Region

Eastern Oklahoma Regional Director
P.O. Box 8002
Muskogee, OK 74402-8002

Phone: (918) 781-4600
Fax (918) 781-4604

Follow this link for information pertaining to ICWA contacts for the Tribes served by the Eastern Oklahoma Region.

Great Plains Region

Great Plains Regional Director
115 4th Avenue SE
Aberdeen, SD 57401

Phone: (605) 226-7343
Fax: (605) 226-7446

Follow this link for information pertaining to ICWA contacts for the Tribes served by the Great Plains Region.

Midwest Region

Midwest Regional Director
5600 West American Blvd., Suite 500
Norman Pointe II Building
Bloomington, MN 55437

Phone: (612) 725-4500
Fax: (612) 713-4401

Follow this link for information pertaining to ICWA contacts for the Tribes served by the Midwest Region.

Navajo Region

Navajo Regional Director, Navajo Regional Office
P.O. Box 1060
Gallup, NM 87305

Phone: (505) 863-8314
Fax: (505) 863-8324

Follow this link for information pertaining to ICWA contacts for the Tribes served by the Navajo Region.

Northwest Region

Northwest Regional Director
911 NE. 11th Avenue
Portland, OR 97232

Phone: (503) 231-6702
Fax (503) 231-2201

Follow this link for information pertaining to ICWA contacts for the Tribes served by the Northwest Region.

Pacific Region

Pacific Regional Director, BIA, Federal Building
2800 Cottage Way, Room W-2820
Sacramento, CA 95825

Phone: (916) 978-6000
Fax: (916) 978-6099

Follow this link for information pertaining to ICWA contacts for the Tribes served by the Pacific Region.

Rocky Mountain Region

Rocky Mountain Regional Director
2021 4th Avenue
Billings, MT 59101

Phone: (406) 247-7943
Fax: (406) 247-7976

Follow this link for information pertaining to ICWA contacts for the Tribes served by the Rocky Mountain Region.

Southern Plains Region

Southern Plains Regional Director
P.O. Box 368
Anadarko, OK 73005

Phone: (405) 247-6673 Ext. 217
Fax: (405) 247-5611

Follow this link for information pertaining to ICWA contacts for the Tribes served by the Southern Plains Region.

Southwest Region

Southwest Regional Director
1001 Indian School Road, NW
Albuquerque, NM 87104

Phone: (505) 563-3103
Fax: (505) 563-3101

Follow this link for information pertaining to ICWA contacts for the Tribes served by the Southwest Region.

Western Region

Western Regional Director
2600 North Central Avenue
Phoenix, AZ 85004

Phone: (602) 379-6600
Fax: (602) 379-4413

Follow this link for information pertaining to ICWA contacts for the Tribes served by the Western Region.