Frequently Asked Questions (FAQ)

If the following questions and answers do not help then please contact us so that we may help. - Wado
For the full text version of the Indian Child Welfare Act, click here.

Click on the heading for the details of the FAQ, click again to collapse:

Indian Child Welfare Act:

Child Placement:

1. Question: Who is eligible to adopt an Indian child?

Answer: You will be eligible to adopt a Cherokee child if you are a relative from either side of the family, regardless of Indian heritage, and can provide a safe and stable home for the child. You will also be eligible to adopt a Cherokee child if at least one of the parents can prove tribal affiliation with a federally recognized tribe through a Certificate Degree of Indian Blood card (CDIB) or membership card and both can meet all the certification standards of the Cherokee Nation adoption program or other accredited adoption agency.

2. Question: Can a non-Indian family adopt an Indian child?

Answer: There are only three occasions when a non-Indian family can adopt a Cherokee child.

  1. When a non-Indian family is a blood relative to the child.
  2. When a child is over the age of 12 and chooses to be adopted by an appropriate non-Indian family.
  3. If there was some extraordinary physical or emotional need of the child and there was currently no appropriate Indian family to meet the child's needs the Cherokee Nation could agree to a placement outside the Act in order to expedite placement and provide for the child's needs in a more timely manner.

3. Question: What does the federal law require when deciding an adoptive placement of an Indian child?

Answer: The federal law requires that certain placement preferences be used in the placement of an Indian child for adoption. The law gives first priority for adoptive placements to a member of the child's extended family. If after a diligent family search, which must be documented for the court, a relative is not available or suitable the placing agent or court must proceed to the second preference placement that is a placement with the Indian child's tribe. Cherokee Nation has a large adoption program which assists placing agencies and courts in meeting this second preference placement. Because of this placement availability it makes it almost impossible for courts to circumvent federal law with a "good cause" finding. The Act also allows for a third placement with members of another Indian tribe that can also be used if the other two preferences have been exhausted. Cherokee Nation also certifies Indian adoptive homes from other tribes.

Legal Reference: 25 U.S.C. #sect# 1915 Placement of Indian children (a)
Published Department of Interior Bureau of Indian Affairs Guidelines:
F.1. Adoptive Placements
Repeats the 25 U.S.C. #sect# 1915 reference but adds additional wording by stating that preferences must be given "in the order listed... ."

4. Question: What is "good cause" to make placement outside the adoption preference placement specifications of the law?

Answer: For Cherokee Nation "good cause" could only be established if, first, no suitable relatives were available for placement and the "due diligence" efforts of the relative search were accepted into the court record. Second, placement with a Cherokee adoptive family would have to be ruled out by the same standard of "due diligence" and accepted into the court record. It is in this area that the "good cause" standard would fail as Cherokee Nation has an abundance of approved adoptive homes that are made available across the United States to meet the placement needs of our Cherokee children. It is our belief that "good cause" cannot be established for adoptive placements of a Cherokee child outside the preference placements of the Act.
Published Department of Interior Bureau of Indian Affairs Guidelines:
BIA Guidelines allow only three reasons for a "good cause" finding to modify placement preferences. They read as follows:

  1. The request of the biological parents or child when the child is of sufficient age;
  2. The extraordinary physical or emotional needs of the child as established by testimony of a qualified expert witness;
  3. The unavailability of suitable families for placement after a diligent search has been completed for families meeting the preference criteria.

5. Question: Who has control of placement decisions?

Answer: Ultimately the judge has the final control of placement decisions, however, he is bound by his judicial oath to follow the laws that govern the placement of Indian children. At this time the federal Indian Child Welfare Act is that law that covers these issues and supercedes any state law to the contrary. However, states may adopt their own state Indian Child Welfare Acts if the state law strengthens or expands the federal law and does not take away or modify the original intent of the federal mandates. In such case the higher standard of protection applies.

Legal Reference: 25 U.S.C. #sect# 1921 Higher State or federal standard applicable to protect rights of parent or Indian custodial of Indian child.

6. Question: What are the consequences of not following the federal Indian Child Welfare Act on placement decisions?

Answer: To Cherokee Nation the most critical consequence is a disrupted placement. If a state court does not follow federal law and allows an illegal placement to continue for an extended period of time the correction of such an error will cause placement change. Depending on the length of time involved before the correction is made, the disruption could have long-term effects on the child. Some courts have made such placement errors and depend on the length of time necessary for appeal to cement the placement and declare "bonding" as a reason for "good cause" not to move the child to an Indian placement. This is a flagrant attempt to circumvent the law at the child's expense. The law is clear on preference placements and the court's responsibility to follow them. The best defense that the tribe has in such issues is a legal appeal. Appeals are never the first option of Cherokee Nation but we are ready to do so when such placement violations are blatant and Cherokee Nation has offered to provide an alternative placement that meets the needs of the child.

Legal Reference: 25 U.S.C. #sect# 1914 Petition of court of competent jurisdiction to invalidate action upon showing of certain violations

Any Indian child who is the subject of any action for foster care placement or termination of parental rights under State law, any parent or Indian custodian from whose custody such child was removed, and the Indian child's tribe may petition any court of competent jurisdiction to invalidate such action upon a showing that such action violated any provision of section 1911, 1912, and 1913 of this title.

Eligibility:

1. Question: Who does this federal law effect?

Answer: This law affects all Indian children under the age of eighteen (18) who are being voluntarily or involuntarily removed from their natural parent(s) or legal guardian for foster care or adoptive placement. These children must be members or eligible for membership in a federally recognized tribe. Excluded are children adjudicated as delinquents or divorce custody matters between parents with no third party placement involved.

Legal Reference: 25 U.S.C. #sect# 1902 Congressional declaration of policy
The Congress hereby declares that it is the policy of this Nation to protect the best interests of Indian children and promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture . . . . . .

2. Question: What types of legal proceedings are covered under the federal Indian Child Welfare Act?

Answer: The Act pertains to all child custody and placement proceedings involving an Indian child such as foster care placement, termination of parental rights, pre-adoptive placement and adoptive placement. It does not include a placement as a result of a delinquent act of a child or in a divorce custody matter between parents when no third party placement is involved.

Legal Reference: 25 U.S.C. #sect# 1903 Definitions (1) "child custody proceeding" shall mean and include:

  1. "foster care placement" which shall mean any action removing an Indian child from its parent or Indian custodian for temporary placement in a foster home . . . . . . .
  2. "termination of parental rights" which shall mean any action resulting in the termination of the parent child relationship;
  3. "pre-adoptive placement" which shall mean the permanent placement of an Indian child in a foster home or institution after the termination of parental rights, but prior or in lieu of adoptive placement; and
  4. "adoptive placement" which shall mean the permanent placement of an Indian child for adoption, including any action resulting in a final decree of adoption.
(4) "Indian child" means any unmarried person who is under age of eighteen and is either (a) a member of a tribe or (b) is eligible for membership in an Indian tribe . . .

3. Question: Do guardianship proceedings fall under the federal Indian Child Welfare Act?

Answer: Yes. Any legal proceeding that causes the Indian child to be removed or separated from their biological parents falls under the provisions of the federal Act.

Legal Reference: 25 U.S.C. #sect# 1903 Definitions (1) (i)

4. Question: Who determines eligibility of the child for inclusion under this federal law?

Answer: The child's tribe is the only entity that can determine whether or not the Act applies to a particular child as inclusion of a child under the Act is based on tribal membership. Tribes have the exclusive right to determine membership requirements to their particular tribe.

Legal Reference: 25 U.S.C. #sect# 1903 Definitions
(3) "Indian" means any person who is a member of an Indian tribe . . . . . . . .
(4) "Indian child" means any unmarried person who is under age of eighteen and is either (a) a member of a tribe or (b) is eligible for membership in an Indian tribe . . . . . . . . .
(5) "Indian child's tribe" means (a) the Indian tribe in which an Indian child is a member or eligible for membership . . . . . . . . .
(8) "Indian tribe" means any Indian tribe, band, nation . . . . .recognized as eligible . . . . . . . by the Secretary (of Interior) . . .

Published Department of Interior Bureau of Indian Affairs Guidelines:
Section B.Determination that Child is an Indian
The determination by a tribe that a child is or is not a member of that tribe, is or is not eligible for membership in that tribe, or that the biological parent is or is not a member of that tribe is conclusive.

5. Question: Can the law apply to children who are not currently members of the tribe?

Answer: Yes it can if the parent of the child is an enrolled member then the child would be eligible for membership and would fall under the purview of the Act even if not currently enrolled. In situations where the parents are not currently enrolled, there is always the possibility they may enroll themselves or the child sometime during the middle of a legal proceeding. If this happens then the case would fall under federal mandates at that point. This is a common occurrence that causes confusion and amended legal actions. Therefore, it is always better to determine any possibility of eligibility at the beginning of the proceeding by supplying the tribe with family tree information so any potential enrollment can be established. When the potential for enrollment is present we find that it is always prudent to follow ICWA mandates from the beginning of the proceeding to prevent any delays or placement problems.

Legal Reference: 25 U.S.C. #sect# 1903 Definitions
(4) "Indian child" means any unmarried person who is under age of eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.

6. Question: What about membership in State recognized tribes?

Answer: The federal Indian Child Welfare Act does not apply to state recognized tribes. However, some states have their own Indian Child Welfare Acts that expand the provisions of the federal law and may include certain allowances in their particular state but it would not apply nationwide.

7. Question: What are the consequences for not following the law?

Answer: Any decision made in court can be appealed. The law provides that almost any error in applying the federal Indian Child Welfare Act can be overturned. To Cherokee Nation the worst consequence of the appeal process is the effects for the children. Appeals take a great deal of time and no matter who wins or who loses the legal battle the child always loses.

Legal Reference: 25 U.S.C. #sect# 1914 Petition of court of competent jurisdiction to invalidate action upon showing of certain violations
Any Indian child who is the subject of any action for foster care placement or termination of parental rights under State law, any parent or Indian custodian from whose custody such child was removed, and the Indian child's tribe may petition any court of competent jurisdiction to invalidate such action upon a showing that such action violated any provision of section 1911, 1912, and 1913 of this title.

8. Question: Why does the federal law exist?

Answer: Cherokee Nation cannot explain this any better than Congress did in 1978 as referenced below in #sect# 1901 Congressional findings.

Legal Reference: 25 U.S.C. #sect# 1901 Congressional findings
Recognizing the special relationship between the United States and the Indian tribes and their members and the Federal responsibility to Indian people, the Congress finds:

  1. That clause 3, section 8, article I of the United States constitution provides that "The Congress shall have Power To regulate Commerce with Indian tribes" and, through this and other constitutional authority, Congress has plenary power over Indian affairs;
  2. That Congress, through statutes, treaties, and the general course of dealing with Indian tribes, has assumed the responsibility for the protection and preservation of Indian tribes and their resources;
  3. That there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children and that the United States has a direct interest, as trustee, in protecting Indian children who are members or are eligible for membership in an Indian tribe;
  4. That an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by non-tribal public and private agencies and that an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions; and
  5. That the States, exercising their recognized jurisdiction over Indian child custody proceedings through administrative and judicial bodies, have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families.

9. Question: What does it mean when a tribe "intervenes" in court proceeding involving the custody of an Indian child?

Answer: When a tribe intervenes in a court matter it means that the tribe is now a party to the proceeding. It also places the court and other interested parties on notice that the proceeding involves a verified member of an Indian tribe and that the provisions of the federal Indian Child Welfare Act will apply to this proceeding. Federal law states that a tribe can intervene at any time during the proceeding so prompt notification to the tribe helps to ensure that the court is aware from the beginning of the proceeding about the application of the laws that apply to Indian children.

Legal Reference: 25 U.S.C. #sect# 1911 Indian tribe jurisdiction over Indian child custody proceedings
(c) In any State court proceeding for the foster care placement of, or termination of parental right to, an Indian child, the Indian custodian of the child and the Indian child's tribe shall have a right to intervene at any point in the proceeding.

10. Question: What if state law conflicts with federal law?

Answer: Federal law always supercedes state law. However, states that have adopted their own state Indian Child Welfare Acts may do so if the state law strengthens or expands the federal law but does not take away or modify the original intent of the federal mandates. In such case the higher standard of protection applies.

Legal Reference: 25 U.S.C. #sect# 1921 Higher State or federal standard applicable to protect rights of parent or Indian custodial of Indian child

In any case where State or federal law applicable to a child custody proceeding under State or Federal law provides a higher standard of protection to the rights of the parent or Indian custodian of an Indian child than the right provided under this subchapter, the State or Federal court shall apply the State or Federal standard.

Notification Responsibilities:

1. Question: Who has the legal responsibility to ensure that the tribe received legal notification?

Answer:

The law states that the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the tribe. This could be the court, attorney, private agency or state agency who is seeking placement action in an Indian child custody proceeding.

Legal Reference: 25 U.S.C. #sect# 1912 Pending Court Actions, Section (a)

2. Question: How do I give legal notice to the tribe as required under this federal law?

Answer:

According to law, notice must be sent by registered mail with return receipt requested, of the pending proceeding and of the tribe's right to intervene. This method would guarantee compliance with federal law and would not create a situation for appeal due to lack of proper notice.

Cherokee Nation is interested in timely notification so that we can be involved from the beginning of the case. This helps to ensure that all steps are done according to law. Cherokee Nation has accepted notice through fax communication and will continue to do so as long as this assists the court in more timely notice. Our fax number is 918-458-6146. We would suggest you follow-up by sending notice according to established ICWA standards. Our choice to accept faxed information is strictly to assist courts in meeting time constraints and in no way indicates that the federal law should not be followed or that any other tribe would choose to do the same.

Legal Reference: 25 U.S.C. #sect# 1912 Pending Court Actions, Section (a)

3. Question: What is required in the notice?

Answer:

  1. Name and date of birth for the child;
  2. Name and date of birth for the natural parents including maiden name of mother;
  3. Names and dates of birth for any known direct ancestors such as grandparents and great-grandparents including maiden names of females;
  4. A copy of the petition, complaint or other document by which this proceeding was initiated;
  5. Names, addresses and telephone numbers of attorneys involved in the action;
  6. Name of the judge presiding over the matter and the address of the court where the matter is to be heard:
  7. Name, address and telephone number of any state or private social worker involved in the proceeding;
  8. Notice of dates and times and location of the scheduled legal proceeding;
  9. Statement of the biological parents or Indian custodians, and the Indian tribe to:
    1. intervene in the proceeding,
    2. to petition the court to transfer the proceeding to the tribal court of the Indian child, and
    3. to request an additional twenty (20) days from receipt of notice to prepare for the proceeding.

 

Without this information there will be delays in processing the children to determine eligibility for tribal membership and return notification to the party needing such information to proceed legally. Cherokee Nation receives approximately 700 such requests each month and we average about two to three weeks from the time of receiving your notice until you get a reply. Any missing information from you only delays that process. Please help us help you.

Legal Reference: 25 U.S.C. #sect# 1912 (a) Notice

4. Question: What are the timeframes for sending notice of the court proceedings to the tribe?

Answer:

According to law, no foster care placement or termination of parental rights proceeding shall be held until at least 10 days after the tribe has received notice. The law also provides that the tribe shall, upon request, be granted up to twenty additional days to prepare for such proceeding. Therefore, early notification of the tribe should be a priority and is necessary under federal compliance before a hearing involving an Indian child can be legally held.

Legal Reference: 25 U.S.C. #sect# 1912 (a) Notice

5. Question: How do I find the mailing address of the tribe that needs notification?

Answer:

Several tribes now have websites that give that type of information. You can send all notice information for the Cherokee Nation to:
Cherokee Nation
Attention: ICW
P.O. Box 948
Tahlequah, OK 74465

If you are unable to locate a website for the particular tribe you need, the Bureau of Indian Affairs maintains a list of the current mailing addresses for all the tribes. You can contact the Bureau in your area to obtain this information. The regional BIA offices are located as follows:

Alaska Regional Office: Eastern Oklahoma Regional Office:
Bureau of Indian Affairs Bureau of Indian Affairs
Niles C. Cesar, Regional Director Jeanette Hanna, Regional Director
P.O. Box 25520 P.O. Box 8002
Juneau, AK 99802-5520 Muskogee, OK 74401
Telephone: 800-645-8397 Telephone: 918-781-4614
Fax: 907-586-7252 Fax: 918-781-4604
Eastern Regional Office: Great Plains Regional Office:
Bureau of Indian Affairs Bureau of Indian Affairs
Franklin Keel, Regional Director Cora L. Jones, Regional Director
711 Stewarts Ferry Pike 115 4th Avenue, SE
Nashville, TN 37214 Aberdeen, SD 57401
Telephone: 615-467-1700 Telephone: 605-226-7343
Fax: 615-467-1701 Fax: 605-226-7446
Midwest Regional Office: Navajo Regional Office:
Bureau of Indian Affairs Bureau of Indian Affairs
Larry Morris, Regional Director Elouise Chicharello, Regional Director
One Federal Drive, Room 550 P.O. Box 1060
Ft. Snelling, MN 55111-4007 Gallup, NM 87305
Telephone: 612-713-4400 Telephone: 505-863-8314
Fax: 612-713-4401 Fax: 505-863-8324
Northwest Regional Office: Pacific Regional Office:
Bureau of Indian Affairs Bureau of Indian Affairs
Stanley Speaks, Regional Director Ronald Jaeger, Regional Director
911 NE 11th Avenue 2800 Cottage Way
Portland, OR 97232 Sacramento, CA 95825
Telephone: 503-231-6702 Telephone: 916-978-6000
Fax: 503-231-2201 Fax: 916-978-6099
Rocky Mountain Regional Office: Southern Plains Regional Office:
Bureau of Indian Affairs Bureau of Indian Affairs
Keith Beartusk, Regional Director Dan Deerinwater, Regional Director
316 N. 26th Street P.O. Box 368 WCD Office Complex
Billings, MT 59101 Anadarko, OK 73005
Telephone: 406-247-7943 Telephone: 405-247-6673
Fax: 406-247-7976 Fax: 405-247-5611
Southwest Regional Office: Western Regional Office:
Bureau of Indian Affairs Bureau of Indian Affairs
Rob Baracker, Regional Director Wayne Nordwall, Regional Director
P.O. Box 26567 P.O. Box 10
Albuquerque, NM 87125 Phoenix, AZ 85001
Telephone: 505-346-7590 Telephone: 602-379-6600
Fax: 505-346-7517 Fax: 602-379-4413

Legal Reference: 25 U.S.C. #sect# 1912 (a) Notice

6. Question: What if I have reason to believe the child is Indian and do not know the tribe? How do I comply?

Answer:

If you have reason to believe the child is Indian and do not know the tribal affiliation, you can comply with federal law by sending your information to the Secretary of the Bureau of Indian Affairs in Washington, D.C. at the following address:

Bureau of Indian Affairs Division of Tribal Government Services MS-4631-MIB
1849 C Street, NW
Washington, D.C. 20240
Telephone: 202-208-2474

 

Legal Reference: 25 U.S.C. #sect# 1912 (a) Notice

Terminology:

Child Custody Proceeding

Shall mean and include any court action involving an Indian child that results in a foster care placement, termination of parental rights, pre-adoptive placement or adoptive placement. :

Foster Care Placement

Shall mean any action removing an Indian child from its parent or Indian custodian for temporary placement in a foster home or institution or the home of a guardian or conservator when the parent or Indian custodian cannot have the child returned upon demand, but where parental right have not been terminated.:

Termination of Parental Rights

Shall mean any action resulting in the termination of the parent-child relationship.:

Pre-Adoptive Placement

Shall mean the temporary placement of an Indian child in a foster home or institution after the termination of parental rights, but prior to or in lieu of adoptive placement.:

Adoptive Placement

Shall mean the permanent placement of an Indian child for adoption, including any action resulting in a final decree of adoption.:

Indian Child

Means any unmarried person who is under the age of eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership is an Indian tribe and is the biological child of a member of an Indian tribe.:

Indian Child's Tribe

Means (a) the Indian tribe in which an Indian child is a member or eligible for membership or (b) in the case of an Indian child who is eligible for membership in more than one tribe, the Indian tribe with which the Indian child has the more significant contacts.:

Extended Family Member

Shall be as defined by the law or custom of the Indian child's tribe or, in absence of such law or custom, shall be a person who has reached the age of eighteen and who is the Indian child's grandparent, aunt or uncle, brother or sister, brother-in-law or sister-in-law, niece or nephew, first or second cousin, or stepparent.:

Transfer of Jurisdiction:

1. Question: Who has the right to ask for transfer?

Answer: A petition to transfer jurisdiction from the state court to the tribal court may be submitted by either parent, the Indian custodian or the Indian child's tribe.

Legal Reference: 25 U.S.C. #sect# 1911 (b)

2. Question: Is transfer from state court to tribal court always granted?

Answer: Law states that the transfer "shall" be granted unless there is an objection from either parent, the Indian custodian or the Indian child's tribe. Such an objection in state court stops the transfer process.

However, absent any objection in the state court the transfer is still subject to acceptance by the tribal court. The final decision for transfer rests with the tribal court. Therefore, if the tribal court declines to accept transfer the proceeding will remain in state court.

The law also allows for the state court judge to make a determination of "good cause to the contrary" not to transfer under certain situations. Some of the exceptions listed in the BIA guidelines are where the Indian child is over twelve years of age and objects to the transfer, the evidence necessary to decide the case could not be adequately presented in the tribal court without undue hardship to the parties or the witnesses or the child's tribe does not have a tribal court as defined by the Act to which the case can be transferred.

Legal Reference: 25 U.S.C. #sect# 1911 (b)
BIA Guidelines: C.3

3. Question: Does the state or state agency originally involved have any input into the disposition of the case after transfer has occurred?

Answer: After transfer to the tribal court the matter is in the exclusive jurisdiction of the tribal court and the state court has no involvement.

Legal Reference: 25 U.S.C. #sect# 1911 (a)

4. Question: Does tribal court always accept transfer requests?

Answer: No. Each situation is evaluated on its own merit to determine if transfer of the proceedings would be in the best interest of the child involved.

5. Question: Which court has the final decision of the transfer request?

Answer: Tribal court has the ultimate decision as to whether or not a case is transferred.

Legal Reference: 25 U.S.C. #sect# 1911 (b)

6. Question: How do I begin the transfer proceeding?

Answer: The request for transfer must begin in the state court with a petition requesting such a transfer. The Indian child's parents, the Indian custodian or the Indian child's tribe are the only parties that can file this petition.

Legal Reference: 25 U.S.C. #sect# 1911 (b)

Voluntary Relinquishments:

1. Question: What is the voluntary relinquishment process for the parents of an Indian child?

Answer:

  1. Any consent given prior to, or within ten days after, the birth of an Indian child shall not be valid. Therefore, relinquishment cannot take place until the child is at least eleven days old.
  2. The relinquishment must be executed in writing and take place in front of a judge of competent jurisdiction and accompanied by the presiding judge's certificate that the terms and consequences of the consent were fully explained in detail and were fully understood by the parents.
  3. The judge must certify that the parents fully understood the English language or that it was interpreted into a language that the parents understood.

Legal Reference: 25 U.S.C. #sect# 1913 (a)

2. Question: What happens if the Indian parents change their minds after the relinquishment papers have been correctly executed?

Answer:

The Indian parents may change their minds at any time, for any reason and the child must be returned to them until the final decree of adoption has been executed by the judge and filed in the court.

Indian parents may still change their minds and have the child returned to them after the final decree is filed if they are able to prove that the signing of the relinquishment papers was done under some type of fraud or duress.

Legal Reference: 25 U.S.C. #sect# 1913 (c) & (d)

3. Question: Am I required to send notice to the tribe in voluntary relinquishment situations?

Answer: Yes. The intent of the 1978 Act is to give the tribe control over the disposition of their children. The law clearly states the federal Indian Child Welfare Act pertains to "Indian child custody proceedings" and the definitions under the act refer to "adoption proceedings" as one of the proceedings included. The purpose of a voluntary relinquishment is to promulgate an adoption proceeding. The act is very specific about "notice" requirements in adoption proceedings.

Legal Reference: 25 U.S.C. #sect# 1903 (1) (iii) & 25 U.S.C. #sect# 1912 (a)

Oklahoma Indian Child Welfare Act: 10 #sect# 40.4

4. Question: Can the tribe intervene in private adoption matters?

Answer:

Yes. The law clearly states that the tribe has the right to intervene in all Indian child custody proceedings at any point in the proceeding.

Legal Reference: 25 U.S.C. #sect# 1911 (c)

5. Question: What are the rights of extended family in voluntary relinquishments?

Answer:

The placement preferences of the Act place family at the top of the list. It is the right of the extended family under the federal Indian Child Welfare Act to be the first consideration for placement. The fact that a relinquishment of parental rights is voluntary does not negate the rights of the first placement preference.

Legal Reference: 25 U.S.C. #sect# 1915 (a)

6. Question: When is an Indian child adoption free from appeal?

Answer:

If an adoption of an Indian child has been finalized for at least two years, it cannot be overturned.

Legal Reference: 25 U.S.C. #sect# 1913 (d)

Adoption:

Certification:

1. Question: What are the fees for the Cherokee Nation adoption program?

Answer: A criminal background check is required on each person over the age of eighteen living in the home. The adoptive parent is responsible for the fee necessary to obtain this information. Currently the fee is $15.00 per person, however, this is subject to change. Fingerprinting is also required on each person over the age of eighteen living in the home. The adoptive parent is responsible for this fee also. Currently the fee for fingerprinting is $22.00 per person, however, this too is subject to change.

You will also be responsible for any attorney fees associated with the adoption. There is also a filing fee required when filing your adoption papers with the court clerk. This fee, and also your attorney fees vary from court to court and attorney to attorney.

You have the option of having your home study done by someone other than Cherokee Nation. If this is the choice you make, then you must be aware that the fees charged by licensed professionals vary and these will be your responsibility. Cherokee Nation however does not charge a home study fee or an adoption fee.

Cherokee Nation provides our services free of charge to potential Indian adoptive couples that adopt an Indian child. If Cherokee Nation completes your adoption home study and at your request this information is sent to another agency for adoption there is still no fee as long as the child adopted is Indian. If, however, Cherokee Nation completes your adoption certification and at your request this information is sent to another agency for adoption and the child adopted is non-Indian there will be a $500 fee to forward your completed packet for such an adoption. Our funding sources only allow us to expend our dollars toward Indian adoptions and using our resources for any other purpose is disallowed.

Those who use other licensed professionals to complete the home study process will not be charged this additional fee regardless of the child adopted.

2. Question: What is a home study?

Answer: A home study is a written document that describes the placement family with all the pertinent information that would allow Cherokee Nation ICW to make an appropriate placement of a child. During the home study process, Cherokee Nation as an agency will come to know your family in a way that allows both the family and agency to reach a comfort level that will enhance the placement process and make for a better working relationship.

3. Question: What is included in a home study?

Answer: A home study is a written document that will include information about your childhood, discipline techniques, your motivation behind adoption, relationships with extended family, children, your spouse and any previous relationships you may have had. Background checks, fingerprinting, physicals and at least six references are also a requirement to completion of a home study.

4. Question: Who sees my home study?

Answer: If you are picked as a potential placement, all parties responsible for placement decisions will review your home study. If a birthmother is requesting to pick a family then she, along with the ICW worker will review the home study. If a state agency is involved, then the tribal worker and the state worker will review the home studies. If you are interested in working with a private adoption agency, then the ICW worker and the social worker with the private agency will be responsible for reading the home studies. Any home study sent outside of Cherokee Nation or given to birthmother's will be de-identified. This means that pertinent information such as last names, addresses, social security numbers, and places of employment and residence will be omitted to protect your confidentiality.

5. Question: Can I get a copy of my home study?

Answer: Yes. A copy of your home study can be sent to you with your written request.

6. Question: Can single parents be certified through the Cherokee Nation?

Answer: Yes. Of course these applicants must be Indian and will be considered like anyone else on their ability to meet a child's particular needs.

7. Question: Do we both have to be Indian to adopt through the Cherokee Nation?

Answer: No. To be eligible for our program at least one of the prospective adoptive parents must be able to prove enrollment in a federally recognized tribe.

8. Question: Do we have to be Cherokee to adopt through the Cherokee Nation?

Answer: No. While Cherokee Nation gives priority to certification of families of Cherokee descent, we actively recruit families associated with other federally recognized tribes. We also work closely with other tribal agencies and have provided families for other tribal children in the past.

We would also recommend that if you are a member of another tribe, it would be to your advantage to contact your tribe and let them know you have been certified for adoption so they are aware of your availability for adoption.

9. Question: How long does it take to get certified for the Cherokee Nation Adoption Program?

Answer: A waiting list is maintained that registers the inquiry of each potential adoptive family as they contact our adoption unit. We contact the families for certification in the order that their inquiry is received. The waiting list averages approximately one hundred names at any given time and we get to them as soon as humanly possible.

Our services are free to those adoptive couples adopting Indian children but remember you have the option of hiring a licensed social worker, at your expense, to complete your home study. This can speed up the certification process. If you choose this option, we will require a copy of the credentials of your contracted agent.

10. Question: How do we get a home study if we don't live in Oklahoma?

Answer: The adoption unit certifies homes free of charge for our Indian families as long as they live within approximately an eight-hour drive and an overnight stay. If you do not reside within this range, then your home study must be contracted out through a licensed social worker. Contracting costs are your responsibility so shop around. We will require a copy of the credentials of your contracted agent.

General Information:

1. Question: Do I have any legal standing prior to the termination of parental rights?

Answer: No. Prior to termination you can only be considered as foster or fost-adopt parents.

2. Question: Do we both have to be Indian to adopt through Cherokee Nation?

Answer: No. To be eligible for our program at least one of the prospective adoptive parents must be able to prove enrollment in a federally recognized tribe.

3. Question: Am I too old to adopt an infant?

Answer: Here again there is not an exact answer to the question. Each situation varies. The rule of thumb that Cherokee Nation uses is that we want the adoptive couple using the consideration of normal life expectancy, to be able to raise a child and physically provide for that child to at least age eighteen and hopefully beyond. All children and adults need connections throughout their lives. We give the total life connections of the child consideration when making placement decisions on the eligible age of the adoptive family.

4. Question: Does Cherokee Nation have a blood-quantum requirement for adoption?

Answer: No. We serve Indian families of varying degrees of blood-quantum. During placement, we do try to match up, to the best of our ability, the blood-quantum of the child with the blood-quantum of the adoptive parent.

5. Question: Can you take my child away after the adoption is finalized?

Answer: Once the adoption is finalized, the child is then your child, just as if it was your biological child. Adoptions will not be finalized until the time limits for filing appeals has lapsed or the appeal process is exhausted.

The only allowance for placement disruption after the adoption is finalized is if the birthparents can prove that they were coerced in any way to voluntarily relinquish their parental rights. Such proof must be supplied and proven in a court of law within the first two years after finalization. Nothing can invalidate an adoption after the two years has passed.

This would not apply where the tribe or state terminated parental rights of a child involuntarily.

ICWA Answers:

1. Question: Do private adoption agencies have to follow the federal Indian Child Welfare Act?

Answer: Yes. Private adoption agencies, adoption attorney's and state agencies are all required to follow the federal law. Cherokee Nation intervenes in all private adoptions of a Cherokee child and WILL NOT consent to a non-Indian placement.

2. Question: Is a private agency responsible for notifying the Cherokee Nation when a Cherokee child may be placed for adoption?

Answer: Yes. Private agencies and attorneys must follow the federal mandates like any state or public agency. As a private agency or attorney it should be common practice that "Do you have Indian heritage?" be one of the first questions asked. If the Indian Child Welfare Act is not followed, the adoption can be appealed for up to two years.

3. Question: What does the federal law require when deciding an adoptive placement of an Indian child?

Answer: The federal law requires that certain placement preferences be used for placement of an Indian child for adoption. The law gives first priority for adoptive placements to a member of the child's extended family. If after a diligent search, which must be documented for the court, a relative is not available the placing agent or court must proceed to the second preference placement that is placement with a member of the Indian child's tribe. Cherokee Nation has a large adoption program. Because of this placement availability it makes it almost impossible for agencies to place a Cherokee child outside of the tribe. The Act also allows for the placement with members of another Indian tribe if there is not an adoptive resource within the child's tribe. Federal law does not make allowances for placements with non-Indian families unless the resources listed above are not available. As stated, Cherokee Nation maintains a substantial pool of such resources.

4. Question: What is "good cause" to make placement outside the adoption preference placement specifications of the law?

Answer: For Cherokee Nation "good cause" could only be established, if no suitable relatives were available for placement and there were no Cherokee Nation families available to adopt. It is in this area that the "good cause" standard would fail as Cherokee Nation has an abundance of approved adoptive homes that are made available across the United States to meet the placement needs of our Cherokee children. It is our belief that "good cause" cannot be established for any placement of a Cherokee child outside of the preference placements of the Act.

5. Question: What are the consequences of not following the federal Indian Child Welfare Act on placement decisions?

Answer: To Cherokee Nation, the most critical consequence is a disrupted placement. If a state court does not follow federal law and allows an illegal placement to occur for an extended period of time the correction of such an error will cause placement change. Depending on the length of time involved before the correction is made, disruption could have long-term effects on the child. Some courts have made placement errors and depend on the length of time necessary for appeal to cement placement and declare "bonding" as a reason for "good cause" not to move an Indian placement. This is a flagrant attempt to circumvent the law at the child's expense. The law is clear on preference placements and the court's responsibility is to follow them. The best defense that the tribe has in such issues is a legal appeal. Appeals are never the first option of Cherokee Nation but we are ready to do so when such placement violations are blatant and Cherokee Nation has offered alternatives to the non-Indian placement that meets the needs of the child.

Placement:

1. Question: Once I am certified, how long does it take to get a child?

Answer: It is impossible to answer this question accurately. Children are not lined up waiting to be picked out like vegetables in a market. Children who become eligible for placement are transitioned into a permanent placement as soon as possible. Placement with you also depends on what type of child you are willing to accept and that may or may not be what type of child is the next available.

2. Question: What do you mean by a fost-adopt placement?

Answer: Fost-adopt is a home that is providing foster care to a child who is not currently legally free for adoption. This is the home that will be utilized as a permanent adoptive placement if and when the legal barriers are resolved.

3. Question: What is a legal risk placement?

Answer: Legal risk is the term that is applied when there is some barrier to finalization of the adoption process. There are various degrees of legal risk that is involved when adopting a child. When you are approached about a particular child for adoption, any such barriers will be fully discussed with you so that you can make an informed decision about whether or not this is the placement for you.

4. Question: Does each child placed in my home have to have its own bedroom?

Answer: Not necessarily. Each child's individual needs are considered when making this type of placement decision. It is sometimes good for children to share rooms just as it is sometimes necessary for them to have separate rooms. If a child or children have no history that warrants separate rooms, then we feel it is much more important for that child to be a part of a permanent family than to be kept waiting for placement just because they won't have their own bedroom. However, if the situation warrants, we may request that a child have its own room.

5. Question: Will we get a child if we don't live in Oklahoma?

Answer: Your location is not a factor. Cherokee Nation ICW is involved with any voluntary or involuntary court proceeding that concerns a Cherokee child throughout the United States. We have a vast need for adoptive parents in every state.

6. Question: How am I selected for placement of a child?

Answer: If it is a voluntary proceeding, Cherokee Nation ICW tries to comply with the wishes of the birthmother. If the birthmother wants to choose the family for her unborn child, the Cherokee Nation contacts families who are willing to comply with her wishes (i. e. open adoption, meeting the family, closed adoption, pictures and letters, etc.). The worker then provides the birthmother with de-identified home studies of families who state they are interested in being considered for that particular placement.

The same hold's true with private adoption agencies as well as with birthmothers. Cherokee Nation tries to meet the birthmother's expectations and requirements for the family that will be parents to her unborn child. But, with private agencies, families will also be contacted about the fees. Home studies will be submitted on those families willing to pay those agencies fees. In situations where the fees are so exorbitant then Cherokee Nation will negotiate with that agency to reduce their fees, as many good families cannot afford to "purchase" a child.

If a child is in state custody, then there are usually two workers, a Cherokee Nation worker and a state worker. The placement worker receives information on the child/children in need of placement and finds families that are possibly willing to meet that child's needs. The Cherokee Nation worker and the state worker will collaborate together and find the family that will best meet the needs of the child.

If the child is in tribal custody, all willing families will be considered and the Cherokee Nation worker who best knows the needs of the child will make the final decision on placement.

7. Question: What will be expected of me when a child is placed in my home?

Answer: There are always agency expectations from any placement and they vary from child to child and agency to agency. But, most of all you are asked to take this child and love it. You are asked to maintain a sense of reality and realize that some of these children need a little more time, a little more patience and a little more love. You are asked not to give up so easily when times get hard. But mostly, you are asked to take the opportunity you are given and make a difference in a child's life.

Pregnancy Services:

1. Question: Can Cherokee Nation give assistance to birthmothers who want to voluntarily place their children for adoption?

Answer: Yes. Cherokee Nation has a variety of services that they can offer. Cherokee Nation can also provide a wide range of adoption home studies that will meet the desires the birthparents may have for the placement of their child.

2. Question: Can the birthparents choose the family where their child will be placed?

Answer: Yes. If the birthparent or parents wish to choose the placement for the their child Cherokee Nation will de-identify the chosen homesteads and let the birthparents select the family where they want their child placed. De-identifying a home study means that pertinent information such as last names, addresses, social security numbers, and places of employment and residence will be omitted to protect the potential adoption family's confidentiality.

3. Question: Can the birthparents meet or talk to the adoptive family?

Answer: Yes. With the agreement of all parties involved arrangements will be made to introduce the families. Both the birth family and the potential adoptive family can decide about any restrictions that should be in place for the meeting. Such restrictions could include a neutral meeting site, telephone contact only, length of visit or conversation, conversational topic limitation, non-disclosure of home address, first names only, etc.

4. Question: Can the birthparents remain anonymous?

Answer: The birth parents have the option of requesting that no one be aware of their decision to give their child up for adoption. Cherokee Nation practices strict confidentiality guidelines and would follow the wishes of the birthparents.

5. Question: Does Cherokee Nation work with birthmothers who are undecided about whether or not they may want to relinquish their child for adoption?

Answer: Yes. Cherokee Nation has Child Welfare Specialists that will work with the birthmother to give them all their options and assist in finding the right solutions for everyone. There is no advantage to Cherokee Nation to influence the birthmother toward adoption, as we due not charge for any of our services so there is no monetary motivation. Our only motivation is to ensure the best interest of all Cherokee people, both children and adults.

Process For Adoptions:

1. Question: If Cherokee Nation completes my home study, what children will be available to me?

Answer: First, Cherokee Nation works extensively with birthmother's wishing to voluntarily relinquish their parental rights. Second, we also have children in the custody of the tribe and various state agencies that have already had their parental right terminated and are in need of permanency. Thirdly, Cherokee Nation works extensively with state agencies, private adoption agencies and other tribal agencies that are looking for Indian families in which to place an Indian child.

2. Question: Is Cherokee Nation involved with private agency adoptions?

Answer: Yes. A private adoption agency is required to comply with the Federal Indian Child Welfare Act, just as a state agency since the Federal Indian Child Welfare Act applies to all Indian child custody matters. Cherokee Nation works with the private agency and supplies potential adoptive families to the agencies that enables them to comply with the federal law. Families, who are willing to work with a private adoption agency, will however be responsible for those agencies fees. In some situations, the fees are so exorbitant they cannot be justified to us so Cherokee Nation will work with the private agency to negotiate those fees.

3. Question: Can my home study be used by other agencies if Cherokee Nation completes the home study? If so, is there a fee?

Answer: Yes. Cherokee Nation will submit your home study free of charge to any agency that uses your study for the placement of an Indian child. You must first sign a release giving us permission to release your home study. If Cherokee Nation is the agency that completes your home study and it is used for placement of a non-Indian child, a minimal fee of $500 will be charged.

4. Question: What does it mean to work with a private agency?

Answer: A private agency is obligated to follow the Indian Child Welfare Act also, just as is a state agency. When a private agency encounters an Indian family wishing to voluntarily relinquish the rights of their child, they are required to notify the tribe. Cherokee Nation will then get information on the biological mother and father, along with information on the agencies fees and any other information that may be pertinent and pass that information along to Cherokee Nation families that are willing to work with private agencies. The home studies of families willing to be considered for that placement are then sent to the private adoption agency for the birth parent or parents to review.

Cherokee Nation intervenes in all private adoptions of a Cherokee child. Private adoption agencies are bound to follow the federal law and the Cherokee Nation WILL NOT consent to a non-Indian placement. If you are willing to work with a private adoption agency, the Cherokee Nation will act as a conduit between you and the adoption agency. You will be required to pay the agency's fees and cooperate with that agency's regulations.

5. Question: Can tribal court be used to finalize private or state adoptions?

Answer: Yes. There are several attorneys who are licensed to practice in tribal court.

Foster Care:

1. Question: What is foster care?

Answer: Foster care is a social service program where families open their homes for a child to live until it is safe for the child to go home or other plans for permanency are made. Foster care is a temporary placement for a child.

2. Question: What do foster parents do?

Answer: Foster parents provide care for children who are removed from their homes for specific reasons such as abuse or neglect. Foster parents serve as temporary parents to a child or children placed in their home. Foster parents love and nurture the children and provide for their basic needs of food, shelter, clothing, and safety. Foster parents help the children maintain their social and cultural connections and customs.

3. Question: What are the basic requirements to become a foster parent?

Answer: Both couples and single persons can become foster parents if you are in good general health, have enough income to adequately support the people currently living in your home, consent to a criminal background check, have adequate room in your home for an additional child or children, attend training for foster parents, and most importantly are willing to work as a part of a team to meet the needs of any child placed in your home.

4. Question: Is there an age requirement to be a foster parent?

Answer: Cherokee Nation requires foster parents to be at least 21 years of age before applying for foster care certification. Cherokee Nation welcomes foster families of all age groups. Cherokee Nation encourages elders in good health to become foster families and be a positive force in our Foster Care Program.

5. Question: Do foster parents have to be married?

Answer: No, foster parents can be single, married, widowed or divorced. What's important is that you are able to give a child the love, care and respect they deserve.

6. Question: What is the process to become a foster parent?

Answer: The first step is to contact the Cherokee Nation child welfare office and let us know you are interested! You may contact us at the numbers listed on this website under CONTACT US. Once you call, the foster care program will assign a worker to your case to assist you with the documentation and do a home study. Your worker will contact you to schedule the first home in order to meet with you and your family.

7. Question: What is a home study?

Answer: A home study is a document developed from the information you have given to Cherokee Nation through your application, home visits, interviews and references. This document gives our workers greater insight into the types of children that you can care for in your home. Your home study will identify your strengths and tell us how many children your home will accommodate, what gender would be most acceptable and with what ages you are willing to work.

8. Question: Is there training available for foster parents?

Answer: Yes, your worker will provide PATH (Parents As Tender Healers) Training in your home or in a group setting. This training helps you understand your role as a foster parent. It will increase your knowledge about children in the child welfare system and help you understand the issues faced by children who have been traumatized by abuse or neglect. There will be other trainings offered periodically that will help you in your understanding and care of the children placed in your home.

9. Question: Will we receive any financial help?

Answer: You will receive a monthly reimbursement to help with the expenses of the child. A medical/dental card is issued to each child while they are in your care to meet any medical expenses the child may incur. You will also receive a seventy-five dollar clothing voucher on a quarterly basis.

10. Question: What if all the adults in the household have employment, can the home still provide foster care?

Answer: Parents can have fulltime employment and still be foster parents for children. Cherokee Nation looks at the whole picture in determining what is the best placement for a child. There are some children who will need a full time parent in the home but each case is evaluated on the needs of the child or children. In some instances when you work outside the home, daycare can be provided. Be sure and ask your worker if you need day care.

11. Question: Do I have to live in the Cherokee Nation boundary to be a foster parent?

Answer: No you do not. We have foster homes across the state of Oklahoma. There are times we may ask a tribe in another area of the state to complete a home study or we may refer you to your local Department of Human Services to complete the home study process. There is a great need for Native American foster families statewide.

12. Question: Do you approve foster homes out of state?

Answer: Not as a general rule, but there are exceptions for family and long-term foster care placements. If we are unable to approve your home due to location, Cherokee Nation will be glad to refer you to another tribe or state agency in your area that provides foster care for Indian children. There is a great need for Native American foster parents all across the United States. We would encourage you to apply to become a foster parent wherever you live.

13. Question: I know Cherokee Nation certifies families that are Cherokee but what if you are a member of another tribe, can you still become foster parents for Cherokee Nation?

Answer: YES. If you or your spouse are a member of another federally recognized tribe, you can become a foster parent for Cherokee Nation. Also, if you are not a member of any tribe but are related to a child who is in the legal custody of the state or tribe, you may qualify to be a foster parent for the child to whom you are related.

14. Question: I know someone who is a foster parent for Cherokee Nation but they are not Indian. How did that happen?

Answer: The Indian Child Welfare Act of 1978 addresses foster care placements. The act states that in any foster care placement, preference shall be given to a member of the Indian child's extended family. So, if you have a child who has one parent that is Indian and the other is not, extended family includes the relatives that are Indian and it also includes those that are not. In other words if you are related to a child who is in the legal custody of the state or the tribe and you are non-Indian, you may be able to become a foster parent for your relative.

15. Question: Why should I become a foster parent for Cherokee Nation?

Answer: Children really are the heart of Cherokee Nation. Many have been displaced from their homes and families. Some do not even know of their rich heritage and culture. By becoming a foster parent, you can enrich the life of a child even if it is just for a short time. It is challenging but when you see a child's life changed in a positive way what better gift can you receive?

Child Protection:

Reporting Child Abuse:

1. Question: Who is required to report child abuse?

Answer: Any person having reason to believe that a child under the age of 18 years is a victim of abuse or neglect shall report the matter promptly. Failure to do so could result in a misdemeanor subject to both fine and imprisonment.

Legal Reference: Federal: 42 USCA Section 13031
Oklahoma State: Title 10 OS 7103
Cherokee Nation: 21 CNCA Section 846

2. Question: If I know a child is being abused and do not report it can I get in trouble?

Answer: Any person who knowingly and willfully fails to promptly report any incident may be reported to local law enforcement for criminal investigation and, upon conviction thereof, shall be guilty of a misdemeanor.

3. Question: To whom do I report child abuse?

Answer: You may call the State Hot Lines in your State or you may call your local agencies. Hot Line numbers are usually located in the front of your telephone directory. Agency numbers are usually listed under State offices in your telephone directory.

4. Question: Do I have to give my name when I make a report?

Answer: In most states you can make anonymous reports, however, it is always helpful to the investigating agency if you are willing to share your identity and other pertinent details as to how you came by the information being reported.

5. Question: If you see someone hit a child are you required to report?

Answer: Yes. Reporting suspected abuse is always best. Remember you are not responsible for determining whether or not child abuse exists, the agency receiving the report will determine if abuse or neglect has occurred.

6. Question: What if I am not sure a child is really being abused am I still required to report?

Answer: Yes. A report will be taken and the agencies will determine if child abuse or neglect is occurring in the home.

7. Question: What if I have only minimal information about the children or the incident, should I still report?

Answer: Yes. Any information that the reporter believes might be helpful in establishing the cause of the injuries and the identity of the person or persons responsible for the child's health, safety or welfare needs to be reported. Even if you have only minimal information it could support other information already in the possession of the agency.

8. Question: Will the family ever know who made the report?

Answer: The reporter's identity is kept confidential from the family being investigated. However, there have been some instances that the court has ruled that the identity of the reporter is pertinent to the validity of the case and will rule that the reporter identity be disclosed in court. Usually in these cases the testimony of the reporter is necessary to prove that the abuse or neglect allegations are valid. In such cases the investigating agency will visit with the reporter about his or her willingness to testify and whether or not such testimony will be needed to prove the case.

9. Question: When a referral is made are children automatically removed from their parents?

Answer: No. Only if the investigation proves that the children are in immediate danger of further harm or a life threatening condition exists will the children be removed from their parents for their own safety.

10. Question: What if a child was abused in another state, whom do I report to?

Answer: Should you need to report in another state or the particular state does not have a hotline you may need to contact the out of state reporting number or the specific county in which the abuse occurred. The Child Help USA National Child Abuse Hotline can provide you with numbers. Contact the National Child Abuse Hot Line at 1-800-422-4453 or at www.childhelpusa.org. The Oklahoma Child Abuse Hotline is 1-800-522-3511. The abuse may also be reported to law enforcement.

State Investigations:

State Investigations: Investigations that are the primary responsibility of state agencies because children being investigated are located on state regulated or fee simple property.

1. Question: If an Indian child is removed by the State, will that child be in the custody of the State?

Answer: Children removed by a State agency are placed in the custody of that particular state, however, it the child is Indian the tribe as concurrent jurisdiction with the state.

2. Question: Can the family being investigated request that Cherokee Nation Indian Child Welfare do the investigation instead of the State?

Answer: No. The family may request Cherokee Nation Indian Child Welfare to be present during the investigation. However, the location of the family's residence will determine who has jurisdiction.

3. Question: Does the State and Cherokee Nation Indian Child Welfare investigate Indian families together or separately?

Answer: If the family lives on Indian land, Cherokee Nation Indian Child Welfare is the only party that can investigate the allegations. If the family lives on State Land the State is primarily responsible for the investigation but the tribe may conjointly participate.

4. Question: If the State is investigating an Indian family how will Cherokee Nation Indian Child Welfare know the family is being investigated?

Answer: The State is required under law and contract to provide Cherokee Nation Indian Child Welfare with any and all information regarding the investigation of a Cherokee child.

5. Question: Can the state place a child with relatives?

Answer: Yes. According to federal and most state law, the prospect for relative placement must be explored immediately upon the child entering the custody of the state and if a feasible relative placement is found the state must place the child in the home of a relative exclusive to all other placements.

6. Question: Will the state place an Indian child in a non-Indian foster home?

Answer: Federal law requires that an Indian child be placed in an Indian foster home. If at the time the child is removed there is not an Indian home available for immediate foster care placement, the Indian could be placed in a non-Indian foster home on a short-term basis for the safety of the child. However, according to federal law and state policy, the state agency must locate an appropriate Indian home as soon as possible and the child will be relocated to meet guidelines.

7. Question: A neighbor abused my child who do I call?

Answer: You should call the local law enforcement agency. Law enforcement is responsible for investigation of child abuse when the perpetrator is someone other than the legal caretaker or parent as this falls under criminal prosecution.

Tribal Investigations:

Tribal Investigations: Those investigations that are the exclusive responsibility of the tribe because the children are Indian and are physically located on Indian Trust lands or those properties owned for controlled by the tribe.

1. Question: Where can Cherokee Nation Indian Child Welfare investigate child maltreatment?

Answer: Cherokee Nation has exclusive jurisdiction over child abuse investigations when the child is found on Indian Trust lands or lands owned or controlled by the tribe. Cherokee Nation can also investigate child abuse on any Cherokee child regardless of their residence if the child is considered in serious danger and the state cannot or will not act.

2. Question: Are tribal investigations only on Indian children?

Answer: Yes. Cherokee Nation does not have any jurisdiction over non-Indian children regardless of their residence.

3. Question: Does Cherokee Nation only investigate Cherokee families?

Answer: No. Cherokee Nation is responsible to investigate child abuse on any Indian child who resides on Indian Trust land or properties owned or controlled by Cherokee Nation. If a member of another tribe is involved, Cherokee Nation immediately notifies the other tribe bring them up to date on the situation and help them facilitate the transfer of the case to their court. Our investigation and involvement is to ensure that the child is protected from additional harm until the other tribe can assume control.

4. Question: How much Indian blood must the children have before Cherokee Nation will be involved with the investigation?

Answer: A child must be a Cherokee Nation tribal member or eligible to be a tribal member to qualify for our services. Cherokee Nation recognizes all degrees of verifiable Cherokee Indian blood as being eligible for membership. Therefore, all Cherokee children are eligible for our services.

5. Question: If Cherokee Nation removes Indian children from their homes for purposes of protection, are these children in the legal custody of the Cherokee Nation or the state?

Answer: If Cherokee Nation removes a child from their home, the child is in the exclusive custody of the Cherokee Nation.

6. Question: Does Cherokee Nation have a court system?

Answer: Yes. Cherokee Nation District court is held in Tahlequah, Oklahoma.

7. Question: What if the children do not have a "white card"?

Answer: They may still fall under the jurisdiction of Cherokee Nation Indian Child Welfare if anyone in their direct bloodline can be traced to an original enrollee of the Cherokee Nation.

8. Question: Does Indian Child Welfare investigate mentally retarded adults?

Answer: No. This is a function of the Adult Protective Services of the tribe.

Court Involved Cases:

Eligibility:

1. Question: Who is eligible and will be provided Cherokee Nation court services?

Answer: A child must meet certain requirements in order to be served by our court unit:

  1. The child must be under the age of 18 and a member or eligible for membership with the Cherokee Nation,
  2. the child must have been voluntarily or involuntarily removed from their parent(s) or Indian custodian by a court or child-placing agency,
  3. and because of this voluntary or involuntary removal the child is being placed temporarily or permanently with a party other than its parent(s) or Indian custodian for foster or adoption services.

 

A child meeting these criteria falls under the notice requirements of the federal Indian Child Welfare Act and is provided with Cherokee Nation services though our court and permanency unit.

2. Question: What information do you need to determine if my child is eligible?

Answer There is certain information that must be submitted to the Cherokee Nation in order for a determination of eligibility to be made. The notice requirement is fully discussed under the federal Indian Child Welfare Act in 25 U.S.C. #sect# 1912 (a). Listed is the information required for Cherokee Nation to determine tribal membership.

  1. Name and date of birth for the child;
  2. Name and date of birth for the natural parents including maiden name of mother;
  3. Names and dates of birth for any known direct ancestors such as grandparents and great-grandparents including maiden names of females;
  4. A copy of the petition, complaint or other document by which this proceeding was initiated;
  5. Names, addresses and telephone numbers of attorneys involved in the action;
  6. Name of the judge presiding over the matter and the address of the court where the matter is to be heard:
  7. Name, address and telephone number of any state or private social worker involved in the proceeding;
  8. Notice of dates and times and location of the scheduled legal proceeding;
  9. Statement of the biological parents or Indian custodians, and the Indian tribe to (a) intervene in the proceeding, (b) to petition the court to transfer the proceeding to the tribal court of the Indian child, and (c) to request an additional twenty (20) days from receipt of notice to prepare for the proceeding.

 

3. Question: To whom do I send the notice requirement information?

Answer: You may send the required notice information to:

Cherokee Nation
Attention: ICW
P.O. Box 948
Tahlequah, OK 74465

4. Question: How long does it take to get an answer once I have given notification?

Answer: It takes approximately two weeks after we receive the information for you to get a response. This is primarily due to the large number of notifications received, approximately 750 per month, and the research required.

If your response has taken longer than our estimate or you have a special circumstance you may call 1-800-256-0671 and ask for the eligibility unit of Indian Child Welfare or you may email the program at icw@cherokee.org.

5. Question: Can you fax the notice information?

Answer: Yes you may, as we will gladly accept this form of notice and the response time is usually quicker, however, we cannot tell you that this will meet compliance with the federal law that states such information should be sent by registered mail with return receipt requested. In the interest of time you may want to fax the information and follow-up with the specific requirements under the law to ensure that your situation will not be open to appeal by other parties under the notice section of the law.

6. Question: What is the least degree of Indian blood you can have and still be eligible?

Answer: There is no percentage blood degree requirement for membership eligibility inclusion with the Cherokee Nation. Any person who can prove to be a direct descendant of an original enrollee of the Dawes Commission Role of 1907-1911 is eligible for our services. This determination of tribal membership eligibility is an exclusive right of the Cherokee Nation.

Each tribe has there own requirements for tribal membership. Only the potential tribe the child might belong to can make a tribal eligibility determination.

7. Question: I know I have Indian heritage, how can I become eligible so the federal Indian Child Welfare Act will apply?

Answer: The only way to become eligible for our services is to verify your tribal membership through the Cherokee Nation registration department. The registration unit can give you guidance is searching your tribal heritage. You may contact them at registration@cherokee.org

8. Question: How do I get a worker assigned to my child's court case?

Answer: Families should inform the court system or the agency that took custody of their child of any Indian heritage the child may have and ask for the court or agency to contact Cherokee Nation or other tribe involved. According to Federal law, the courts must notify tribes of impeding court action whenever an Indian child is taken into custody.

The family also has the right to notify the tribe about the court involvement.

After notification, there must be a determination as to whether on not the child meets the eligibility requirements for our programs. The notification information must be supplied as referenced in Question #2. Once a there is a positive eligibility determination, the child is assigned a court worker. That worker's name can be verified by calling 1-800-256-0671 and asking for Indian Child Welfare, if you have legitimate involvement with the child.

9. Question: What does it mean when Cherokee Nation intervenes on a juvenile court case?

Answer: The law states that Cherokee Nation has the right to intervene at any point in the proceeding. This intervention means that Cherokee Nation is now a party to the action and will be submitting reports and recommendations to the court in regards to direction and placement options under the law. Intervention gives the tribe the right to participate in court proceedings and places the court on notice that the child involved is an Indian child and subject to all the protections that the law provides.

10. Question: Does my child have to be a registered member of the Cherokee Nation before a worker can be assigned to the court case?

Answer: No. Your child does not have to currently be a member but the child must be eligible for membership before a worker can be assigned.

11. Question: Why are some Cherokee children placed into tribal custody while other Cherokee children are placed into state custody?

Answer: Initial jurisdiction is determined by where the child is located at the time court action becomes necessary. If an Indian child is found on state land the state court system has the authority to take an Indian child into their court system. The same applies if a child is on tribal or trust land, the tribal court system has the authority to take an Indian child into their court system. However, this initial jurisdiction does not prohibit a later transfer of jurisdiction from state court to tribal court if the child and family can be better served in the tribal system.

When a child is in the jurisdiction of the state, Cherokee Nation has concurrent jurisdiction in state custody matters and will often opt to work collaboratively with the state to ensure the family has access to services from both the state and Cherokee Nation. Children who are under the jurisdiction of the tribe or have been transferred to tribal custody are in the exclusive care, custody and control of the tribe and have no connection with the state court system.

Indian Child Welfare Act:

1. Question: Is the tribe going to move the case to tribal court?

Answer: The answer for this question will depend on several issues. Some of the issues under consideration would be:

  • Would such a transfer be in the best interest of the child?
  • Would the transfer be in the best interest of the family?
  • Does transfer of the child to tribal court involve a placement change? If so what are the benefits or liabilities to such a change?
  • Can Cherokee Nation resolve the issues involved in a timelier manner?
  • Can Cherokee Nation offer a better service delivery system for the unique needs of the child and family?
  • Will transfer place any type of additional burden on the participants, such as travel distance or frequency of visitation?
  • Are the parties who need to testify in this particular matter willing or able to do so in tribal court?
  • Does Cherokee Nation have the resources to meet this particular child's needs?

    The answers to these questions as well as other considerations are carefully examined before Cherokee Nation Indian Child Welfare will recommend transfer of a state case to the tribal system. However, even a positive recommendation by our child welfare services does not guarantee the tribal court will accept transfer. Tribal court, by federal law, has the final decision as to whether or not to accept transfer.

    Legal Reference: 25 U.S.C. #sect# 1911 (b) Transfer of Proceedings

  • 2. Question: Is the tribe going to object to the child's current placement?

    Answer: Objection to placement by the tribe depends on the legality of the current placement. The federal Indian Child Welfare Act and the current policies of the Cherokee Nation declare the first option for the placement of Cherokee children will be with relatives regardless of whether the placement is for foster care or for adoption. This first option will be exhausted before the second option is explored. The second option for foster care placement is a foster home licensed, approved, or specified by Cherokee Nation. This second option will be exhausted before the third option is explored. The third option for foster care is an Indian home licensed and approved by an authorized licensing authority.

    For adoption the second option is placement with a Cherokee tribal member. This second placement option will be exhausted before the third option is explored. The third option is placement with a member of another federally recognized tribe.

    If the current placement for foster care or adoption does not meet the above criteria then Cherokee Nation will object to the child's current placement. Both federal and tribal law supports such an objection.

    Legal Reference: 25 U.S.C. #sect# 1915 (a) Adoptive placement; preferences and (b) Foster care placements; criteria; preferences

    3. Question: Can a non-Indian family member be considered for placement?

    Answer: Yes. The first preference placement for both foster care and adoption under both federal and tribal law states that placement should be made with a relative of the child. Both sides of the family, regardless of their Indian heritage, are equal to the child and should be considered solely on their ability to provide for the best interest of the child, not their tribal membership.

    Legal Reference: 25 U.S.C. #sect# 1915 (a) Adoptive placement; preferences and (b) Foster care placements; criteria; preferences

    4. Question: Do I have the right to request transfer?

    Answer: Yes, if you are the parent or Indian custodian of the child, you have the right to request a transfer of the legal proceedings to the tribal court. The only other entity that can request transfer is the child's tribe.

    Legal Reference: 25 U.S.C. #sect# 1911 (b) Transfer of proceedings

    5. Question: My husband/wife and I are getting a divorce; can you help me get custody of the children?

    Answer: No. Cherokee Nation has no legal authority to intervene in divorce custody matters. The law allows that parents have an equal interest in the custodial matters of their children and the tribe cannot enter into such a proceeding if the parents are the only parties contending for custody. However, if the judge would award some third party custody in a divorce proceeding due to some protection issue for the child, Cherokee Nation could intervene at that point.

    6. Question: What is considered restricted/trust land?

    Answer: That land which is held in trust by the federal government for the exclusive use of Indian people.

    7. Question: What does it mean when a tribe "intervenes" in court proceeding involving the custody of an Indian child?

    Answer: When a tribe intervenes in a court matter it means that the tribe is now a party to the proceeding. It also places the court and other interested parties on notice that the proceeding involves a verified member of an Indian tribe and that the provisions of the federal Indian Child Welfare Act will apply to this proceeding. Federal law states that a tribe can intervene at any time during the proceeding so prompt notification to the tribe helps to ensure that the court is aware from the beginning of the proceeding about the application of the laws that apply to Indian children.

    Legal Reference: 25 U.S.C. #sect# 1911 Indian tribe jurisdiction over Indian child custody proceedings
    (c) In any State court proceeding for the foster care placement of, or termination of parental right to, an Indian child, the Indian custodian of the child and the Indian child's tribe shall have a right to intervene at any point in the proceeding.

  • Since You Asked:

    1. Question: My parental rights were terminated; can I get my child back?

    Answer: The answer to this question is generally no, however, there might be extenuating circumstances to be considered. The best answer is to check with an attorney if you think your parental rights were terminated illegally. However, if your child has been adopted and that adoption has been finalized for two years you will not be able to change that adoption status regardless of any extenuating circumstances.

    2. Question: We have a child in state custody with blond hair and blue eyes; do we still have to notify the tribe?

    Answer: Yes, if that child or the family of that child claim Indian heritage you are responsible under federal law to notify the tribe of the court proceedings. The law states that the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the tribe. This could be the court, attorney, private agency or state agency who is seeking placement action in an Indian child custody proceeding.

    According to law, notice must be sent by registered mail with return receipt requested, of the pending proceeding and of the tribe's right to intervene. This method would guarantee compliance with federal law and would not create a situation for appeal due to lack of proper notice.

    Cherokee Nation is interested in timely notification so that we can be involved from the beginning of the case. This helps to ensure that all steps are done according to law. Cherokee Nation has accepted notice through fax communication and will continue to do so as long as this assists the court in more timely notice. Our fax number is 918-458-6146. We would suggest you follow-up by sending notice according to established ICWA standards. Our choice to accept faxed information is strictly to assist courts in meeting time constraints and in no way indicates that the federal law should not be followed or that any other tribe would choose to do the same.

    The notice must contain:

    1. Name and date of birth for the child;
    2. Name and date of birth for the natural parents including maiden name of mother;
    3. Names and dates of birth for any known direct ancestors such as grandparents and great-grandparents including maiden names of females;
    4. A copy of the petition, complaint or other document by which this proceeding was initiated;
    5. Names, addresses and telephone numbers of attorneys involved in the action;
    6. Name of the judge presiding over the matter and the address of the court where the matter is to be heard:
    7. Name, address and telephone number of any state or private social worker involved in the proceeding;
    8. Notice of dates and times and location of the scheduled legal proceeding;
    9. Statement of the biological parents or Indian custodians, and the Indian tribe to (a) intervene in the proceeding, (b) to petition the court to transfer the proceeding to the tribal court of the Indian child, and (c) to request an additional twenty (20) days from receipt of notice to prepare for the proceeding.

    Without this information there will be delays in processing the children to determine eligibility for tribal membership and return notification to the party needing such information to proceed legally. Cherokee Nation receives approximately 700 such requests each month and we average about two to three weeks from the time of receiving your notice until you get a reply. Any missing information from you only delays that process. Please help us help you.

    Legal Reference: 25 U.S.C. #sect# 1912 (a) Notice

    3. Question: Is there a ceremony for a non-Indian to be adopted into the tribe?

    Answer: No. The only way to be a tribal member for Cherokee Nation is to prove your direct heritage to a tribally recognized member. Our registration department can help you with this process. You may contact the registration department with your questions at registration@cherokee.org

    4. Question: My child is in the custody of the state because he/she broke the law; can Cherokee Nation become involved?

    Answer: No. Federal law does not make provision for the tribe to intervene in a criminal action committed on state land, even when committed by a child.

    5. Question: I am an attorney and am sending a waiver. Would the tribe sign this waiver and agree to not being involved in the case?

    Answer: No. Cherokee Nation will not waive any rights in matters that involve our children.

    6. Question: If a child is in the custody of the tribe or the state and has relatives that are both Indian and non-Indian, do the Indian relatives get placement preference?

    Answer: No. While placement with family is the first consideration for the child, the family member chosen for placement will be the one best qualified to meet the individual needs of the child regardless of heritage.

    7. Question: When an Indian child is in the state system but not Cherokee can the Cherokee Nation intervene and work the case?

    Answer: No. The child involved must be a member or eligible for tribal membership with the Cherokee Nation before the law would allow us to become involved. Each tribe is entitled to take care of the children belonging to their individual tribes regardless of the location.

    8. Question: Are there ever exceptions made to place a Cherokee child in a non-relative, non-Indian home?

    Answer: Only in extreme circumstances will such an exception be made. If the extreme special needs of the child require care that cannot be obtained from an Indian resource, non-relative, non-Indian families might be used. If such a family can meet the special resource needs of the child and the search for Indian placement would cause a delay in placement that would be detrimental to the child this exception could be made.

    Terminology:

    Adjudication

    a judicial decision for substantiation of fact. This is a judicial term describing the action that takes place in the courtroom when the evidence presented proves that there is sufficient cause to keep children out of the home of their original caretaker. Children can be removed from their original caretakers for a variety of reasons. The facts of the situation must be presented before a judge, either in tribal or state court, to determine if the evidence warrants continuing the children in the custody of the Department of Human Services or Indian Child Welfare. This hearing process is called an adjudication hearing. This hearing normally takes place between thirty and ninety days after the initial removal.

    Beyond a Reasonable Doubt

    a level of evidence finding that requires approximately 98% of the evidence to be in favor of the particular finding. This is the highest level of evidence finding offered by a court system. To terminate parental rights of an Indian child, this is the level of evidence required under both the federal and state Indian Child Welfare Acts. The majority of states use the "clear and convincing" evidence level for termination of parental rights. The legal order received from the state must have the terminology of "beyond a reasonable doubt" in the language of the signed termination order. If this language is not present, it must be assumed that the legal follows normal state requirements of clear and convincing. Clear and convincing is not acceptable and the termination can be appealed for an Indian child.

    Clear and Convincing

    a level of evidence finding that requires approximately 75% of the evidence to be in favor of the particular finding. This is the level of evidence required under both the federal and state Indian Child Welfare Acts in order to remove an Indian child from his home. The majority of states use the "preponderance of the evidence" level for removal of children. The legal order received from the state must have the terminology of "clear and convincing" in the language of the signed removal or adjudication order. If this language is not present, it must be assumed that the legal follows normal state requirements of preponderance of the evidence. Preponderance of the evidence is not acceptable and the removal can be appealed for an Indian child.

    Deprived Child

    a child that is adjudicated by the court to be deprived of some fundamental need that would insure his well-being. A child who for any reason is destitute, homeless, abandoned or who does not have the proper parental care or guardianship. A child whose home is an unfit place for the child by reason of neglect, cruelty, or depravity on the part of his parents, legal guardian, or other person in whose care the child may be. A child who is in need of special care and treatment because of his physical or mental condition including a child born in a condition of dependence on a controlled dangerous substance. This child could be considered deprived if his parents, legal guardian or their custodian is unable or willfully fails to provide said special care and treatment. A handicapped child deprived of the nutrition necessary to sustain life or of the medical treatment necessary to remedy or relieve a life-threatening medical condition that is deemed necessary in the reasonable medical judgment of the attending physician. A child may be considered deprived who, due to improper parental care and guardianship, is absent from school for fifteen (15) or more days or parts of days within a semester. He may also be considered deprived if he is absent for four (4) or more days or parts of days within a four-week period without a valid excuse as defined by the local school boards. School attendance requirements are valid if said child is subject to compulsory school attendance.

    Dispositional Hearing

    a juvenile judicial hearing to determine the plan for children and families after the adjudication hearing has been held. Dispositional hearings are set to determine such things as to whether placement of the child in out-of-home care is necessary and what services the child and family will need to reduce the risk of maltreatment and to address the effects of maltreatment.

    Due Diligence

    the use of every effort available in resolving an issue. Due diligence is doing the best that you can while doing all that you can. Efforts of due diligence are a part of every case file and the extent of those efforts are sometimes required by the judge in determining the outcome of a particular situation. Every child welfare worker is expected to exercise the use of due diligence in every aspect of case management. Examples of areas where due diligence is applied include: search for relative placement resources, investigative responsibilities, home study processes for foster care and adoption, visitation and care requirements with the children for which agencies have legal care, custody and control.

    Fost-adopt

    the concept of a home that primarily wants to adopt but is willing to provide foster care to a child who is not currently legally free for adoption. This is the home that will be utilized as a permanent adoptive placement when and if the legal barriers are resolved. Cherokee Nation begins permanency planning for a child from the moment a child comes into the judicial system. A part of the permanency plan or concurrent planning process may include a fost-adopt placement. A fost-adopt placement is willing to carry out the role of foster parents and work toward reunification knowing that they will be the permanent adoption placement if and when termination of parental rights occurs. Relatives are the first consideration for fost-adopt placement. It is solely the decision of the potential fost-adopt family as to whether or not they are able to handle the repercussions of a particular placement. The benefits for the child are enormous. First, children have fewer placements while in care and find a stable home more quickly. Second, fost-adopt homes provide a stronger emotional base for the child as they include the child as a more "real" member of the family and give the child a better sense of belonging.

    There are also benefits for the "fost-adopt" parent. First, children placed in their home have not been exposed to the uncertainty of multiple placements and all the behavioral problems this practice entails. Second, children come to their home at a much earlier age than normally expected through current practice. However, there is a major emotional drawback that some adoptive couples are not willing to consider. "At risk" placements always carry some degree of uncertainty and the possibility exists that a child may, under certain circumstances, return to the home of their original caretaker. Adoptive couples are always given all the information available to the social worker and court system about a particular child. "Fost-adopt" is not for everyone. It is always the choice of the potential adoptive parent as to what plan will work for their family.

    Intervention

    the act of allowing a party to intervene in a court matter. The Federal Indian Child Welfare Act allows tribes to intervene in certain state court juvenile matters that concern their own tribal children. Cherokee Nation may choose to intervene in a state court matter involving a Cherokee child. This intervention gives the state court official notice that the tribe is involved with this child and that the tribe reserves its rights under the applicable Indian Child Welfare Acts.

    Jurisdiction

    the power, right and authority of a sovereign power to legislate, interpret and apply the law. Jurisdiction is the term that is applied to the court, whether state or tribal, who has assumed the care, custody and control of the child in question. Children in tribal court are in the exclusive jurisdiction of the tribe. For children in the state court system where the tribe has intervened both courts are considered to have conjoint jurisdiction. Tribal courts also have the option of requesting that jurisdiction in a state court matter be transferred exclusively to the tribal court.

    Permanency

    providing a child with a safe and stable place where they can thrive while growing to adulthood. Permanency means providing a home for a child where they can stay without fear and uncertainty. Permanency is the feeling that the Cherokee Nation wants for every child. This sense of permanency becomes a part of the child when fear and uncertainty are removed. Permanency is best provided in the home of the natural parents if that home can be made safe and stable in a reasonable period of time. If the natural parents are not an alternative then child welfare workers must work diligently to build that sense of belonging with whatever placement plan can be provided.

    Relinquishment or Voluntary Consent

    when the termination of parental rights is taken by the court under the agreed upon consent of the biological parents. Voluntary relinquishments cannot be given until the child is at least ten days old. Any relinquishment taken on an Indian child prior to the ten days will be invalid and can be overturned on appeal.

    Remedial Efforts or Active Efforts

    a hands-on approach to service provision. Efforts to prevent the removal of Indian children from their families must be remedial in its approach according to the Federal Indian Child Welfare Act. It may be the difference in showing a family what needs to be done instead of telling them. It may be the difference in making the appointments and taking the family to the service providers instead of telling them what services they need.

    Show Cause Hearing

    a hearing held within forty-eight judicial work hours after a child has been removed from his home. A show cause hearing is held to determine whether or not there is sufficient evidence for the child to remain in the custody of the court past the first forty-eight hours. If so an adjudication petition must be filed within five working days in order to maintain court custody of that child until an adjudication hearing can be held.

    Termination of Parental Rights

    the legal severance of the parental right of the biological parents that leaves the child free to be legally adopted by someone else. Termination of parental rights must be completed on both biological parents before the adoption process can begin. This includes whatever time frames are allowed for the appeal process.

    Tribal/State Custody:

    1. Question: How do I know who my worker will be?

    Answer: Workers are assigned within two weeks of the tribe receiving notification of the proceeding. You can call the Tahlequah office at 1-918-456-0671 or 1-800-256-0671 and request extension #2220 to request the name of the worker assigned.

    2. Question: I am a relative of a child in custody and would like to be considered for placement, what do I do?

    Answer: If you know the name of the worker assigned you may contact Indian Child Welfare at 918-456-0671 or 1-800-256-0671 at extensions #2220 and request personal contact with that worker. If you do not know the name of the worker or have any difficulty in contacting or making connection you may either leave your information with the receptionist and/or email us at icw@cherokee.org The information needed will include your:

  • Name
  • Address
  • Telephone number and hours available at this number
  • Relationship to the child
  • Name of the child or children in question The worker will contact you within two weeks. If this does not occur please call the number listed above and ask for a program manager.

     

  • 3. Question: Is the tribal worker going to represent what I, as the parent, want in court?

    Answer: Not necessarily. The tribe will represent what is in the child's best interest, which may or may not coincide with the parent's wishes. While ensuring the child's well being, we will also work to ensure the legal rights of the parents are protected. These legal rights will include assistance in finding the services ordered by the court, visitation rights with your child, court assignment of an attorney if you cannot afford one and other provisions allowed under the federal and state laws.

    4. Question: Will the tribe pay for my attorney?

    Answer: No. The tribe does not provide this service. However, if you are entitled by law to receive a court appointed attorney Cherokee Nation will advocate for this legal entitlement.

    5. Question: Why is the tribe intervening in my child's case?

    Answer: First of all, the federal law is very specific about the right of the tribe to intervene in any state court proceeding* concerning one of their children. If the child in question is a Cherokee child, then Cherokee Nation can intervene under federal law to provide an additional layer of protection for the child's safety and well being.
    Second, Cherokee Nation considers our tribal children to be a part of the larger tribal family and as such deserve any protections that we can secure.

    *Exceptions for tribal intervention: 1) Delinquent child matters and 2) divorce custody proceedings where the court is not seeking third party placement for the child.

    Legal Reference: 25 U.S.C. #sect# 1911 Indian tribe jurisdiction over Indian child custody proceedings

    6. Question: What differences are there between tribal court cases and state custody cases? Is there an advantage to transferring the case to tribal court?

    Answer: When a Cherokee child is in the state court system the state has primary decision-making power while Cherokee Nation has concurrent jurisdiction. Concurrent jurisdiction means Cherokee Nation is allowed to intervene in the state court matter and present evidence, file reports and affect case outcomes to comport with federal law. Cherokee Nation also has the right to request transfer of the case in its entirety to the tribal system. Having a case in tribal court means Cherokee Nation has exclusive jurisdiction over the entire case and no state system has the power to influence decision outcomes. It is not always an advantage to transfer state matters to tribal court. Only the parties involved in a specific court matter can determine whether or not it would be an advantage to transfer a state case to tribal court. Even if a parent or other interested party makes a request in the state system to transfer jurisdiction and the state system agrees with transfer, the tribal court can still deny transfer requests. Such denial from the tribal court is binding and the state system must maintain jurisdiction.

    7. Question: In state custody matters are Cherokee Nation and the state social services agency always in agreement? If not what happens?

    Answer: No. When these two agencies are in disagreement on any issue about the case, the disagreement must be settled in court by the judge presiding over the matter. Both agencies will present their opinions in writing to the judge as well as making verbal statements to verify their particular position. After hearing both sides the judge will make the final decision.

    8. Question: Does Cherokee Nation stay in a case from intervention until the state dismisses?

    Answer: Yes. The exception is where children have been returned to their biological parents and the state keeps the case open for monitoring purposes only. Cherokee Nation closes this type of case 30 days after the children have been returned to their parents and will not open it again unless the children are removed again. The state may keep such a case open as long as a year.

  • Home-Based Services:

    General Information:

    1. Question: What is the purpose of the home-based Families First Program?

    Answer: To work with families in a one-on-one setting and provide supportive services that will enhance family functioning and interaction.

    2. Question: What types of services does the Families First program provide?

    Answer: Families First provides services for those families who voluntarily accept services and those families who are mandated to receive certain services through the court system to complete their family reunification plans. Providing these services requires the creation of an individualized treatment plan or court ordered plan that is tailored to the specific needs of the family. Such services available can include:

    • Parenting instruction in the areas of:
      1. Child development
      2. Child safety
      3. Discipline and guidance
      4. Nutrition/Health
    • Hands-on skill-building activities such as:
      1. Budgeting
      2. Meal planning and preparation
      3. Household maintenance techniques
      4. Child safety and nutrition
    • Preventive child care
    • Stress Management
    • Domestic Violence Education
    • Social Skills
    • Infant Massage
    • Transportation for specific treatment plan needs
    • Referral Assistance

     

    3. Question: For whom are the Families First programs designed?

    Answer: For any parent or caretaker who has the responsibility of children under the age of 18 years of age who needs supportive services who may be experiencing difficulty with changing situations in their lives. Examples of such changes are:

    • Birth of a new baby
    • Financial difficulties
    • Divorce
    • Domestic violence
    • Teen pregnancy
    • Single parenthood
    • Child behavioral problems
    • Child abuse or neglect
    • Death
    • Blended Families

    4. Question: Who is eligible for Families First services?

    Answer: To be eligible for these services, families must reside within the jurisdictional boundaries of the Cherokee Nation and meet one of the following criteria:

    • First, there must be a child under the age of 18 who is a member or eligible to be a member of a federally recognized tribe, residing in the home on a full time basis, or;
    • There must be a mother who is pregnant with an eligible child.

    Referrals for this program are assigned based on need and urgency.

    5. Question: How are Families First services rendered?

    Answer: All services are provided in the home of the client. Once the referral is accepted a Families First worker visits the home to design a treatment plan that will accomplish the needs recognized by the family. (Court ordered plans are determined by the judicial system and cannot be modified) The worker will be in the home as often as necessary to complete the designed plan. The treatment plan specifies:

    • Scheduled home-visit day(s) and times that will meet the designed outcomes of the plan. This varies according to the individualized needs of the family.
    • The length of involvement. Plans are usually completed within 90 to 120 days. However, there are always exceptions to these timeframes and the family's need dictates the frequency and duration of the involvement.
    • Plan goals and objectives

    6. Question: What are the goals of the Families First program?

    Answer: First, the Families First program works to identify and provide services to eligible Indian families that may be vulnerable due to a history of abuse or neglect. Second, we want to provide services for those Indian families who are currently experiencing stressful life events by identifying and eliminating problem areas before they manifest into larger problems. Examples of such issues could be anticipating the birth of a new child or grandparents raising grandchildren, etc. Third, Families First strives to strengthen families by providing intensive home-based services that target the families identified needs.

    How To Access Services:

    1. Question: How do I request services for myself or someone else?

    Answer: The easiest way is to call us at 918-456-0671 or if you live in the state of Oklahoma you can use our toll free number of 1-800-256-0671. Ask the person who answers to connect you to "Intake" in Indian Child Welfare. The "Intake" office will record the information you supply and a determination will then be made as to whether or not the applicant meets the eligibility requirements listed on this site under General Information.

    2. Question: Who should make a referral for home-based services?

    Answer: Anyone having knowledge of the need in a particular family can make a referral. Self-referrals are always welcome.

    3. Question: Can the referral be made anonymously?

    Answer: Yes. We will accept anonymous referrals but we always encourage the person making the referral to identify themselves for the benefit of the client. The relationship the caller has to the person needing services could be valuable in determining service design and building long term support systems for the client.

    4. Question: What kind of information is needed to submit a referral?

    Answer: We cannot begin our service process without at least the last name of the family, the concerns you have and the finding directions to the home. We would appreciate the names of the parents (maiden name of mother, if available), names of the children, ages or dates of birth of the children, telephone number and other additional information such as when the last time the child or children were seen and what did you see that caused you to think that this family could use assistance.

    5. Question: Does the reporter have to provide proof of the concerns being reported?

    Answer: No. However, the reports should be made in good faith.

    6. Question: Will the reporter's name be revealed to the family?

    Answer: No. The identity of the person making the referral will not be revealed to the family. All such information is confidential.

    7. Question: If I make a self-referral can I control what services I receive?

    Answer: Yes. You can request the services you desire, however, a full assessment of family strengths and needs will be done and if the worker determines that additional services are in the best interest of the family or children they will try to encourage the family to accept these additional services. If this request is a voluntary situation and not court ordered, the family does not have to accept the recommended services. However, the program can refuse to work with the family if it has been determined that the family needs assistance in meeting basic child safety needs and refuses to do so.

    Terminology:

    Application

    A signed request for services.

    Assessment

    The act of evaluating a particular situation to determine an anticipated or desired outcome. The FAMF unit is required to assess the individual and family functioning of those who request services. This assessment measures their needs and strengths in the areas in which the family is seeking assistance. Assessments should include detailed family functioning and make recommendations that would elevate the family's chances for safety and stability.

    At Risk Families

    Families in which circumstances, whether intentional or unintentional, have the potential of placing the children at risk of maltreatment. Voluntary applicants for FAMF services are usually families that realize that there are problems or stressors that exist and are seeking help to prevent such an occurrence.

    Case Plan

    Synonymous with Treatment Plan - a written plan designed to ensure that the needs of the children and family are met. Case plans are a required part of any ongoing case. This plan should be developed with the family and should include the family's input and acceptance. The successful completion of case plan goals will indicate that a case should be closed.

    Confidentiality

    Answer:

    Maintaining that confidential information that was entrusted to you whose unauthorized disclosure could be prejudicial or harmful to a child or family.

    Crisis Intervention

    The necessity of taking immediate steps to prevent further tragedy from occurring. Workers primary responsibility is to see that children are in an environment that will provide safety and well-being.

    Discipline

    Training that develops self-control and/or efficiency. Workers endeavor to teach discipline to families through the use of educational models for parenting, child/family interaction and personally modeling behavior that sets an example of providing health and well-being to the children in the home.

    Empowerment

    The act of giving someone else the ability to overcome an obstacle. The goal of home-based services is to use education and modeling to bolster the family in areas of weakness or need so that the family can maintain safe and healthy activities after case closure.

    Home-Based Services

    The services delivered by the worker are delivered in the client's home. A home-based service delivery system is designed for the client's convenience and comfort. This type of system allows services to be delivered around the client's work schedule and provides a less intimidating atmosphere for instruction and learning. The client should feel more in control and instruction has a more practical application when their own home is used as the training area.

    Home Visits

    The implementation of face-to-face contact in the client's home. The home-based worker is responsible to deliver its services through personal contact in the home of the client.

    Parenting Education

    Formal and informal instruction provided to parents or other caretakers of children that has the potential to increase parenting knowledge and practice abilities. Training is provided to adults responsible for the well-being of children. This training is developed toward the individual needs of the client and can incorporate any component from a broad selection of subject matter. Teaching components are selected that would best eliminate any of the client's deficiencies and when practiced by the client would increase the safety and well-being of the child or children in the home.

    Self-Sufficiency

    The ability of a person to meet his or her basic needs without governmental agency assistance. One of the primary goals of Cherokee Nation and home-based services is to assist families in reaching some level of self-sufficiency.





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