3. Inquiry and Verification of Child's Indian Status

Approval: Jennifer Strus, Assistant Secretary

Original Date: September 12, 2016

Revised Date: Not Applicable

Policy Review: June 30, 2020

Purpose

Determining a child’s Indian status must be made as soon as possible to serve the best interests of the Indian child and to protect the interests of the child’s tribe RCW 13.38.070(2). CA caseworkers must identify and verify whether a child meets the definition of an Indian child early in the case to preserve the child's culture.

Scope

This policy applies to Division of Children and Family Services staff.

Laws

RCW 13.38 Washington State Indian Child Welfare Act (WICWA)

25 U.S.C. § 1901 - 1923 The Federal Indian Child Welfare Act (ICWA)

25 CFR Part 23 Bureau of Indian Affairs ICWA Regulations

Policy

  1. Under the federal ICWA regulations, CA must use "due diligence" to "identify and work with all of the tribes of which there is reason to know the child may be a member (or eligible for membership), to verify whether the child is in fact a member (or a biological parent is a member and the child is eligible for membership)." CA must "treat the child as an Indian child, unless and until it is determined on the record that the child does not meet the definition" of an Indian child. 25 CFR 23.107 (a), (b)
  2. CA caseworkers must complete the Indian Identity Request DCYF 09-761 at the initial visit with the parent(s)/Indian custodian on all screened in cases for each child, including those who have not been identified as victims.
  3. When a child may have Indian ancestry and be affiliated with a federally recognized tribe, CA caseworkers will:
    1. Complete a Family Ancestry Chart DCYF 04-220 and include: 
      1. Full names of child’s birth parents, grandparents, and great grandparents (as far back as possible). 
      2. Mother’s maiden name. 
      3. Mother’s married name(s). 
      4. Any aliases used by individual(s) identified on the form. 
    2. Send a Native American Inquiry Referral (NAIR) to the Native American Inquiry Unit: 
      1. Within 10 working days of Indian ancestry identification for: 
        1. all new cases. 
        2. Cases with prior episodes when a tribe(s) responded but the family has provided new information which might change the tribe(s) response. 
      2. After 18 months if a case is re-opened and a tribe(s) in prior episodes responded to the inquiry that the child was not a member or eligible for membership and no new information has been provided by the family.
  4. Upon receipt of the referral, the NAIR unit will send to the identified tribe(s): 
    1. First inquiry letter within 30 days from Indian ancestry identification. 
    2. Second inquiry letters within 60 days from the initial inquiry. (Out-of-state tribes only require two inquiry attempts). 
    3. Third inquiry letters 60 days from the second inquiry. (Sent only for Washington state federally recognized tribes). 
  5. The NAIR worker will contact the Portland Bureau of Indian Affairs (BIA) regional office when the identity of the child’s tribe/s is unknown. Per 25 U.S.C § 23.111 (11) the address to use is: Portland Regional Director, Bureau of Indian Affairs, 911 NE 11th Ave, Portland, Oregon 97232. 
  6. CA caseworkers will continue outreach efforts to the identified federally recognized tribes after the NAIR unit sends all inquiry letters and no response has been received. Outreach includes:
    1. A minimum of one monthly contact to the tribe(s) and the Portland BIA (to request help in contacting the tribe) until the tribe responds. 
    2. Follow-up with tribes who have not responded, even when one tribe responded the child is a member or eligible for membership. A child may have affiliation with more than one tribe and ICWA requires states to have this on the record.
  7. Before a termination of parental rights trial, CA must request that the court make a finding on the record about whether there is reason to know the child is an Indian child and whether ICWA applies. CA must be prepared to present to the court all the evidence it has about a child’s connection to a tribe. 25 C.F.R. § 23.107.
    1. If a tribe does not respond after 12 months to the CA caseworker’s required attempts to determine if the child is a member or eligible for membership, the CA caseworker and supervisor will consult with the AAG and CA ICW headquarters to establish if CA applied due diligence in trying to obtain a response from a tribe. 
    2. If the AAG and CA ICW headquarters review the history of the CA caseworker’s efforts to contact the tribe and determine that additional efforts must be made, the CA caseworker must make those efforts before presenting the matter to the court.
    3. Even if the court determines on the record that there is not reason to know the child is an Indian child and that ICWA will not apply, a party who later comes forward with reason to know ICWA applies can request the court to hold that ICWA applies. RCW 13.38.070(3)(c)
  8. If CA learns of new evidence during a case that gives reason to know the child is an Indian child (such as a tribe changing eligibility requirements over the course of a case and a child can now be determined to be a member or eligible for membership, or a tribe has recently received federal recognition), CA must bring new evidence to the court’s attention. 25 C.F.R. § 23.107(a); RCW 13.38.070(4)(a)
  9. CA caseworker will document all efforts taken to identify a child’s Indian status in FamLink.

Procedures

  1. Identifying and verifying a child’s Indian status:
    1. Generate the Indian Identity Request DCYF 09-761 from create casework in FamLink and bring to the initial visit (some fields will pre-populate). Ask the child’s parents, any person who has custody of the child or with whom the child resides, and any other person that can reasonably be expected to have information about the child’s possible membership or eligibility for membership in a federally recognized tribe and upload the Indian Identity Request DCYF 09-761 signed by the parent(s) in FamLink:
      1. Choose Document under File Upload.
      2. Select case and case participant and create. 
      3. Under Document Details complete the following: 
        1. Select Case as Category 
        2. Select Indian Identity Request #09-761 as the Type
        3. Type the Child’s name as the title 
        4. Save the document, which will appear under file upload
    2. Complete a Family Ancestry Chart DCYF 04-220 if the family identifies a tribe, even when the family states or provides documentation they are already a member (including an enrollment card).
    3. Complete a Native American Inquiry Referral (NAIR) per instructions on the ICW intranet and send to CANativeAmericanInquiry@dshs.wa.gov. And create a case note with Referral to Native American Inquiry Unit as the activity.
      1. The NAIR unit worker will:
        1. Send the Inquiry to Indian Tribe DSHS 09-539 and Family Ancestry Chart DCYF 04-220 to all identified tribes and: 
          1. Record tribe’s responses in FamLink. 
          2. Forward the first completed inquiry letter and tribal response(s) to the primary CA caseworker to place in the ICW section in the current case file volume. 
        2. Send a second inquiry within 60 days to any tribe(s) who hasn’t responded to the first inquiry and: 
          1. Record tribe’s response(s) in FamLink. 
          2. Forward the completed second inquiry letter, Family Ancestry Chart and tribal responses to the primary CA caseworker to place in the ICW section in the case file. 
        3. Send third inquiry letter within 60 days to any Washington state federally recognized tribe who hasn’t responded to the second inquiry and: 
          1. Record tribe’s response(s) in FamLink. 
          2. Forward the completed third inquiry letter, Family Ancestry Chart and Tribal responses to the primary CA caseworker to place in the ICW section in the case file. 
        4. Upload in FamLink all responses from a federally recognized tribe(s) when responses are received prior to case closure that indicate a child is a member or eligible for membership: 
          1. Choose Document under File Upload. 
          2. Select case and case participant and create. 
          3. Under Document Details complete the following: 
            1. Select Case as Category 
            2. Select Inquiry to Indian tribe DSHS 09-539 as the Type 
            3. Type the Child’s name as the title 
            4. Save the document, which will appear under file upload
    4. When parental rights have not been terminated, enrollment of a child is ultimately a decision between the tribe and the parents. 
      1. Help the parents complete paperwork to enroll the child in the tribe at the parents’ request.
      2. A worker must not sign paperwork to enroll a child in a tribe when parental rights have not been terminated.
    5. Treat the case as non ICWA when all identified tribes respond and verify in writing that: 
      1. The child is not a member 
      2. The child is not the biological child of a member and not eligible for membership.
  2. Non-ICWA Cases
    1. The supervisor must verify the tribe(s) has responded that the child is not a member or the biological child of a member and eligible for membership. 
    2. The CA caseworker must provide a written statement documenting the tribe has declared a child is ineligible for membership to the court. 
    3. Change the ICWA coding to non-ICWA and none on the child’s ICW management page in FamLink for each tribe who responds the child is not eligible. 
    4. Document in the comments section of the ICW management page when a tribe responds the child is not a member or eligible for membership, but is a descendant. 
    5. Develop a culturally appropriate case plan when the child does not meet the legal definition of an Indian child and the tribe responds the child is not a member or eligible for membership. 
    6. Immediately follow ICW policy and procedures if a tribe subsequently verifies a child is a member or eligible for tribal membership.

Forms

Resources