The document summarizes key findings from a study that analyzed over 100 tribal child welfare codes. Some of the main findings include: - Nearly half of the 107 codes reviewed were amended after 2000, indicating tribes are increasingly asserting their sovereignty over child welfare. - Tribal codes address jurisdiction, tribal-state relationships, reporting abuse, and paternity. Most codes include statements asserting jurisdiction over tribal members and some also include non-member Native children. - Many codes have processes for transferring child welfare cases from state to tribal courts and for responding to notices of cases that may be covered by the Indian Child Welfare Act. - Common methods for establishing paternity include acknowledgment or presumption based on marriage or living with the child

1. Native Nations Institute and the National Indian Child Welfare Association
Adrian Tobin Smith, Mary Beth Jäger, Rachel Starks
PROTECTING OUR CHILDREN THROUGH TRIBAL LAW
A Review of 100+ Tribal Child Welfare Codes (Part II)
HOW ARE TRIBES ASSERTING THEIR SOVEREIGNTY TO PROTECT THEIR CHILDREN?
• Researchers reviewed 107 tribal child welfare codes.
• Codes came from tribes in every BIA service region (including Alaska).
• Indigenous nation populations in our sample ranged from fewer than 50 to approximately 18,000 citizens.
• Almost half the codes reviewed were amended after 2000.
• Codes were retrieved from the National Indian Law Library collection and other on-line sources.
CONCLUSION
The study analyzed over 100 variables on eight child welfare topics: culture, jurisdiction, tribal-state relationships,
child abuse reporting, paternity, foster care, termination of parental rights (TPR) and adoption.
This graphic presentation highlights key findings from 4 of these topics: jurisdiction, tribal-state relationships, child abuse
reporting, and paternity. For highlights of the other topics please see Protecting Our Children Through Tribal Law (Part I).
This study analyzes how tribes are asserting their authority over child welfare and what lessons can be learned from enacted child welfare codes.
JURISDICTION
Asserting jurisdiction allows for child welfare
cases to be heard in tribal court—where
decisions will be made based on tribal code.
Over what area and which children should
your court assert jurisdiction?
• ICWA formally recognized tribes’ inherent jurisdiction over
child custody proceedings involving member children both
on reservation (i.e., either exclusive tribal jurisdiction, or
concurrent jurisdiction with the state in accordance with
P.L. 280) and off reservation (transfer from state to tribal
jurisdiction).
• In addition, tribes can generally assert civil jurisdiction
over all citizens of any federally recognized tribe when the
case arises on that tribe’s land.
Does your tribe have the resources and staff
for all the cases under its jurisdiction? Certain
cases? Complicated or high needs cases?
Rachel Rose Starks, MA (Zuni/Navajo)
Senior Researcher
Native Nations Institute, University of Arizona
rstarks@email.arizona.edu
Adrian (Addie) Tobin Smith, JD, MSW
Government Affairs Staff Attorney
National Indian Child Welfare Association
addie@nicwa.org
Mary Beth Jäger, MSW (Citizen Potawatomi)
Research Analyst
Native Nations Institute, University of Arizona
jager@email.arizona.edu
General Jurisdictional Framework
Jurisdiction Over Indian Children
Tribal Policy Considerations:
Should paternity be easy or difficult to establish?
Should presumptions be expansive or narrow?
• Being a biological father does not necessarily make an individual
a legal father. The tribal code is a place where tribes can
determine which fathers are legal fathers--which fathers have
paternity. Tribal child welfare codes can establish “presumptions”
of paternity and/or provide a process for fathers to formally
establish paternity.
Should cultural and traditional considerations be
a part of paternity laws?
• Paternity affects which rights (e.g., rights to custody) and
responsibilities (e.g., child support) a father has. Paternity
provisions in tribal codes also inform which fathers are protected
by ICWA in state cases.
Provisions for Presuming or Establishing Paternity Process to Respond to Notice of ICWA Cases and
Process to Transfer from State to Tribal Court
Tribal Policy Considerations:
How can tribal law promote ICWA protections for
members living off tribal land?
• States are required to notify tribes when they remove a member
child (or a child who could be a member) from their parents’ or
guardians’ home. A formal process to respond to state ICWA
notices can ensure a state knows when a case involves an “Indian
child” and when ICWA must be applied. It also protect's a tribe's
right to intervene in or transfer state court proceedings involving
member children.
How can tribal law facilitate transfers of state
ICWA cases to tribal court?
• ICWA gives tribes the right to transfer child custody proceedings
involving member children out of state court and into tribal court.
A formal transfer process promotes fair and feasible decisions
when determining which state child welfare cases should be
brought into tribal court.
When a state notifies a tribal court about an
ICWA-eligible case, does the tribe have a desig-
nated agent to respond to the notice?
If a child welfare case is eligible for transfer
from state to tribal court, does the tribe have a
process for the transfer?
Tribal Policy Considerations:
Who should be required to report possible child
abuse and neglect to authorities? What should
the penalty be for not reporting?
• Individuals who come into frequent contact with children often
become aware of potential child abuse and negelct in a child’s
home. Requiring individuals who know or suspect abuse or
neglect to report it to authorities can give children a voice and
ensure important protections.
How will reporter anonimity be protected?
Should reporting penalties or expectations be
different for professionals versus other commu-
nity members? What standards will the tribe
use to verify reports?
Tribal Policy Considerations:
Tribal leaders have many local experts (e.g.,
tribal judges, lawyers, social workers) who
understand the current tribal child welfare
policies and practices. They know what works,
the challenges, and the financial consider-
ations. Their expertise will assist in creating
strong and meaningful child welfare codes.
The citizens of Native Nations are also invalu-
able experts on child welfare. Through a
community engagement process, expertise on
community values, traditional culture, and
current needs can be gathered. Citizen
engagement with the child welfare code
process is essential to its success.
This analysis of tribal child welfare codes
captured important information about how
tribes define their jurisdictional boundaries,
protect children, provide legal rights to
fathers, and respond to families in state child
welfare systems. The study seeks to further
conversations about how tribes can assert
their sovereignty to protect their children.
How has your tribe
asserted its sovereignty
in its child welfare code?
RESPONSE TO CHILD
ABUSE AND NEGLECT
Who is a Mandatory Reporter?
Mandatory Reporting
PATERNITY
Common Methods for Presuming Paternity
TRIBAL-STATE
RELATIONS
0
10
20
30
40
50
60
70
80
Tribal Child Welfare Codeʼs
jurisdictional framework
differs from ICWA
Tribal Child Welfare Code
restates ICWA jurisdictional
framework
No explicit statement of jurisdiction
in tribal welfare code
Explicit statement of jurisdiction over
nonmember Indian children (only)
Explicit statement of jurisdiction over
tribal member children and statement of
jurisdiction over nonmember Indian Children
Explicit statement of jurisdiction over
tribal member children (only)
Code does NOT have
mandatory reporting statute
Code has mandatory
reporting provision
0
10
20
30
40
50
60
70
80
NO
YES
Tribal law
enforcement
officer
AttorneyTribal
judge
Tribal
prosecutor
Mental health
professional
Medical
professional
Social
worker
Child care
personnel
School official
or employee
All community
members
0 10 20 30 40 50 60 70 80
No provisions for
formally establishing
or presuming paternity
Tribal Child Welfare Code
Includes processes for
formally establishing or
presuming legal paternity
0
10
20
30
40
50
Not
Included
Included
Other
Father has
acknowledged
his paterntiy
with the vital
statistics bureau
Father has
acknolwedged
his paternity
in writing
with the court
Father has lived
with the child
and held the
child out ot
be his own
Father has
held the child
out as his own
Born to parties
who married
(or attempted
to marry)
after the child's
birth and father
acknowledged child
Born to
parties who
attempted to
marry (but
marriage was
not legal)
Born during
marriage or
within 300 days
after marriage
No designated agent and
No transfer process
Process for transferring state child
welfare cases to tribal court (only)
Designated agent for responding
to ICWA notice+process to transfer
from state to tribal court
Designated agent for responding
to ICWA notices (only)
Shaded area indicates codes that include BOTH jurisdictional statements.
Shaded area indicates codes that include both a designated agent to respond to notice of ICWA cases, and
a process to transfer the case from state to tribal court.
Copyright © 2015 Arizona Board of Regents. All Rights Reserved.
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