2.40.30 Requesting Court Findings about Indian Children for Dependency Cases

Original Date: July 1, 2024

Sunset Review Date: July 31, 2028

Approved by: Tleena Ives, Office of Tribal Relations

Purpose

The purpose of this policy is to provide guidance when there is reason to know that children are or may be Indian children on how to request court findings during dependency cases to:

Determine whether children are Indian children.
Which tribe is the Indian child’s tribe.

Scope

This policy applies to caseworkers.

Laws

Chapter 13.34 RCW Juvenile Court Act–Dependency and Termination of Parent-Child Relationship

Chapter 13.38 RCW Indian Child Welfare Act

25 U.S.C. § 1901-1923 Indian Child Welfare Act

Policy

When there is reason to know children are or may be Indian children, caseworkers must always treat children as Indian children, unless, and until the court has made findings on the child’s Indian status as determined by their tribes.

Procedures

For the courts to determine whether children are Indian children, caseworkers must follow these policies:
1. Tribal Inquiry
2. Indian Child Welfare Act (ICWA) Notice
Caseworkers must coordinate with assistant attorneys general (AAG) to:
1. Request the court’s findings on the child’s Indian status.
2. Provide the court with all the information about due diligence.
3. Complete the following:
  1. When responses are received from:
    1. At least one tribe stating the child is a member or eligible for membership in their tribe, request the court find that the child is an Indian child.
    2. Multiple tribes stating the child is a member or eligible for membership in their tribe, request the court:
      1. Find that the child is an Indian child as determined by the tribes.
      2. Allow the tribes to determine which tribe is the Indian child’s tribe. If the tribes don’t agree, request the court determine which tribe is the child’s Indian tribe for purposes of the dependency.
  2. Request the court find Department of Children, Youth, and Families (DCYF) performed due diligence and the child is not an Indian child if any of the following occur:
    1. Responses
      1. All known tribes responded to either form that the child is not a member or eligible for membership:
        Inquiry to Indian Tribe DCYF 09-539
        Indian Child Welfare Act Notice (BIAN) JU 03.0900
      2. The BIA hasn’t provided information in response to either the:
        Inquiry to Indian Tribe DCYF 09-539
        Indian Child Welfare Act Notice (BIAN) JU 03.0900
    2. There are no known tribes and due diligence was performed when tribal heritage or Indian ancestry is reported but the tribe remains unknown, and the Bureau of Indian Affairs (BIA) hasn’t provided information in response to the:
      1. Inquiry to Indian Tribe DCYF 09-539
      2. Indian Child Welfare Act Notice (BIAN) JU 03.0900
    3. All of the following are met, unless, after staffing with the AAG a request for a continuance is determined to be more appropriate:
      1. Not all known tribes have responded to either the:
        Inquiry to Indian Tribe DCYF 09-539
        Indian Child Welfare Act Notice (BIAN) JU 03.0900
      2. Thirty calendar days have passed since the final Tribal Response to ICWA Notice DCYF 09-538 was sent, as outlined in the ICWA Notice policy.
      3. The caseworker has been unable to contact the known tribes who haven’t responded despite performing due diligence.
      4. The BIA hasn’t provided information in response to either the:
        Inquiry to Indian Tribe DCYF 09-539
        Indian Child Welfare Act Notice (BIAN) JU 03.0900
Follow policies:
1. ICWA Notice and email the court’s finding or statement of ICWA determination to the ICW Legal Unit, within three calendar days.
2. Child Welfare Documentation to document all ICW communications and activities.