25 U.S.C. § 1912 — Pending court proceedings

Page 389 TITLE 25—INDIANS § 1912 (iv) ‘‘adoptive placement’’ which shall mean the permanent placement of an Indian child for adoption, including any action re- sulting in a final decree of adoption. Such term or terms shall not include a place- ment based upon an act which, if committed by an adult, would be deemed a crime or upon an award, in a divorce proceeding, of custody to one of the parents. (2) ‘‘extended family member’’ shall be as de- fined by the law or custom of the Indian child’s tribe or, in the 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 neph- ew, first or second cousin, or stepparent; (3) ‘‘Indian’’ means any person who is a member of an Indian tribe, or who is an Alas- ka Native and a member of a Regional Cor- poration as defined in section 1606 of title 43; (4) ‘‘Indian child’’ means any unmarried per- son who is under age 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; (5) ‘‘Indian child’s tribe’’ means (a) the In- dian tribe in which an Indian child is a mem- ber or eligible for membership or (b), in the case of an Indian child who is a member of or eligible for membership in more than one tribe, the Indian tribe with which the Indian child has the more significant contacts; (6) ‘‘Indian custodian’’ means any Indian person who has legal custody of an Indian child under tribal law or custom or under State law or to whom temporary physical care, custody, and control has been transferred by the parent of such child; (7) ‘‘Indian organization’’ means any group, association, partnership, corporation, or other legal entity owned or controlled by Indians, or a majority of whose members are Indians; (8) ‘‘Indian tribe’’ means any Indian tribe, band, nation, or other organized group or com- munity of Indians recognized as eligible for the services provided to Indians by the Sec- retary because of their status as Indians, in- cluding any Alaska Native village as defined in section 1602(c) of title 43; (9) ‘‘parent’’ means any biological parent or parents of an Indian child or any Indian person who has lawfully adopted an Indian child, in- cluding adoptions under tribal law or custom. It does not include the unwed father where pa- ternity has not been acknowledged or estab- lished; (10) ‘‘reservation’’ means Indian country as defined in section 1151 of title 18 and any lands, not covered under such section, title to which is either held by the United States in trust for the benefit of any Indian tribe or in- dividual or held by any Indian tribe or indi- vidual subject to a restriction by the United States against alienation; (11) ‘‘Secretary’’ means the Secretary of the Interior; and (12) ‘‘tribal court’’ means a court with juris- diction over child custody proceedings and which is either a Court of Indian Offenses, a court established and operated under the code or custom of an Indian tribe, or any other ad- ministrative body of a tribe which is vested with authority over child custody proceedings. (Pub. L. 95–608, § 4, Nov. 8, 1978, 92 Stat. 3069.) SUBCHAPTER I—CHILD CUSTODY PROCEEDINGS § 1911. Indian tribe jurisdiction over Indian child custody proceedings (a) Exclusive jurisdiction An Indian tribe shall have jurisdiction exclu- sive as to any State over any child custody pro- ceeding involving an Indian child who resides or is domiciled within the reservation of such tribe, except where such jurisdiction is other- wise vested in the State by existing Federal law. Where an Indian child is a ward of a tribal court, the Indian tribe shall retain exclusive jurisdic- tion, notwithstanding the residence or domicile of the child. (b) Transfer of proceedings; declination by tribal court In any State court proceeding for the foster care placement of, or termination of parental rights to, an Indian child not domiciled or resid- ing within the reservation of the Indian child’s tribe, the court, in the absence of good cause to the contrary, shall transfer such proceeding to the jurisdiction of the tribe, absent objection by either parent, upon the petition of either parent or the Indian custodian or the Indian child’s tribe: Provided, That such transfer shall be sub- ject to declination by the tribal court of such tribe. (c) State court proceedings; intervention In any State court proceeding for the foster care placement of, or termination of parental rights 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. (d) Full faith and credit to public acts, records, and judicial proceedings of Indian tribes The United States, every State, every terri- tory or possession of the United States, and every Indian tribe shall give full faith and credit to the public acts, records, and judicial pro- ceedings of any Indian tribe applicable to Indian child custody proceedings to the same extent that such entities give full faith and credit to the public acts, records, and judicial proceedings of any other entity. (Pub. L. 95–608, title I, § 101, Nov. 8, 1978, 92 Stat. 3071.) § 1912. Pending court proceedings (a) Notice; time for commencement of pro- ceedings; additional time for preparation In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termi- nation of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child’s tribe, by registered mail with Page 390 TITLE 25—INDIANS § 1913 return receipt requested, of the pending pro- ceedings and of their right of intervention. If the identity or location of the parent or Indian custodian and the tribe cannot be determined, such notice shall be given to the Secretary in like manner, who shall have fifteen days after receipt to provide the requisite notice to the parent or Indian custodian and the tribe. No fos- ter care placement or termination of parental rights proceeding shall be held until at least ten days after receipt of notice by the parent or In- dian custodian and the tribe or the Secretary: Provided, That the parent or Indian custodian or the tribe shall, upon request, be granted up to twenty additional days to prepare for such pro- ceeding. (b) Appointment of counsel In any case in which the court determines indigency, the parent or Indian custodian shall have the right to court-appointed counsel in any removal, placement, or termination proceeding. The court may, in its discretion, appoint coun- sel for the child upon a finding that such ap- pointment is in the best interest of the child. Where State law makes no provision for ap- pointment of counsel in such proceedings, the court shall promptly notify the Secretary upon appointment of counsel, and the Secretary, upon certification of the presiding judge, shall pay reasonable fees and expenses out of funds which may be appropriated pursuant to section 13 of this title. (c) Examination of reports or other documents Each party to a foster care placement or ter- mination of parental rights proceeding under State law involving an Indian child shall have the right to examine all reports or other docu- ments filed with the court upon which any deci- sion with respect to such action may be based. (d) Remedial services and rehabilitative pro- grams; preventive measures Any party seeking to effect a foster care placement of, or termination of parental rights to, an Indian child under State law shall satisfy the court that active efforts have been made to provide remedial services and rehabilitative pro- grams designed to prevent the breakup of the In- dian family and that these efforts have proved unsuccessful. (e) Foster care placement orders; evidence; de- termination of damage to child No foster care placement may be ordered in such proceeding in the absence of a determina- tion, supported by clear and convincing evi- dence, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical dam- age to the child. (f) Parental rights termination orders; evidence; determination of damage to child No termination of parental rights may be or- dered in such proceeding in the absence of a de- termination, supported by evidence beyond a reasonable doubt, including testimony of quali- fied expert witnesses, that the continued cus- tody of the child by the parent or Indian custo- dian is likely to result in serious emotional or physical damage to the child. (Pub. L. 95–608, title I, § 102, Nov. 8, 1978, 92 Stat. 3071.) § 1913. Parental rights; voluntary termination (a) Consent; record; certification matters; invalid consents Where any parent or Indian custodian volun- tarily consents to a foster care placement or to termination of parental rights, such consent shall not be valid unless executed in writing and recorded before a judge of a court of competent jurisdiction and accompanied by the presiding judge’s certificate that the terms and con- sequences of the consent were fully explained in detail and were fully understood by the parent or Indian custodian. The court shall also certify that either the parent or Indian custodian fully understood the explanation in English or that it was interpreted into a language that the parent or Indian custodian understood. Any consent given prior to, or within ten days after, birth of the Indian child shall not be valid. (b) Foster care placement; withdrawal of consent Any parent or Indian custodian may withdraw consent to a foster care placement under State law at any time and, upon such withdrawal, the child shall be returned to the parent or Indian custodian. (c) Voluntary termination of parental rights or adoptive placement; withdrawal of consent; return of custody In any voluntary proceeding for termination of parental rights to, or adoptive placement of, an Indian child, the consent of the parent may be withdrawn for any reason at any time prior to the entry of a final decree of termination or adoption, as the case may be, and the child shall be returned to the parent. (d) Collateral attack; vacation of decree and re- turn of custody; limitations After the entry of a final decree of adoption of an Indian child in any State court, the parent may withdraw consent thereto upon the grounds that consent was obtained through fraud or du- ress and may petition the court to vacate such decree. Upon a finding that such consent was ob- tained through fraud or duress, the court shall vacate such decree and return the child to the parent. No adoption which has been effective for at least two years may be invalidated under the provisions of this subsection unless otherwise permitted under State law. (Pub. L. 95–608, title I, § 103, Nov. 8, 1978, 92 Stat. 3072.) § 1914. Petition to court of competent jurisdiction to invalidate action upon showing of certain violations Any Indian child who is the subject of any ac- tion 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 sections 1911, 1912, and 1913 of this title. (Pub. L. 95–608, title I, § 104, Nov. 8, 1978, 92 Stat. 3072.)