Ala. Admin. Code r. 660-5-36-.03

Current through Register Vol. 42, No. 10, July 31, 2024

Section 660-5-36-.03 - Jurisdiction Of Tribal Courts And State Courts

(1)Active Efforts to Keep an Indian Family Together: Prior to initiating court proceedings to remove Indian children from their homes, active efforts are made to provide remedial services and rehabilitative programs to prevent placement.

(2)Jurisdiction of State and Tribal Court: When the assessment is that an Indian child living off the reservation needs to come into care, the State Court has jurisdiction.

(a) Exclusive Tribal Jurisdiction: Tribal Courts have exclusive jurisdiction over child custody proceedings, as defined in ICWA, that involve Indian children who reside on the reservation or are "domiciled" within the reservation. Tribes determine whether a child is domiciled on the reservation and this is afforded "full faith and credit" by state courts. A tribe's right to intervene in certain proceedings is absolute as specified in 25 United States Code, Chapter 21 §1901 - 1923.

(b) Tribal Court Ward: Tribal Courts have exclusive jurisdiction in cases that involve an Indian child who is a ward of the tribal court. The state court shall contact the tribal court to determine whether the child is a ward of the tribal court.

(c) Emergency Removal -DHR Authority: The Department has authority to take custody and assure the safety of an Indian child who is in imminent danger and who resides on an Indian reservation, is domiciled on a reservation or is a ward of the Tribe but is temporarily off the reservation. DHR is relieved of emergency custody when removal is no longer necessary to prevent imminent danger or the tribe assumes jurisdiction over the child.

(3)Jurisdiction of State Courts in Indian Child Welfare Cases: State courts are responsible for transferring jurisdiction to tribal courts upon the petition of either parent, the Indian custodian or Indian tribe, absent good cause or absent the objection of either parent. It is the responsibility of the trial court to determine good cause not to transfer jurisdiction to the tribal court of a case involving an Indian child who is a member or eligible to become a member of an Indian tribe. "Good cause to the contrary" has been interpreted by the United States Bureau of Indian Affairs, Department of Interior to include the following:

(a) The proceeding was at an advanced state when the petition to transfer was received because the petition was not filed promptly by the parents, Indian custodian or the tribe after having received timely notification of the proceedings;

(b) The Indian child is over the age of twelve (12) years old and has personal objections to the transfer;

(c) 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 and parties; or

(d) The parents of an Indian child over age of five years of age are not available, and the child has had little or no contact with the child's tribe or members of the child's tribe.

(4)Qualified Expert Witness: Before an Indian child is placed in foster care or termination of parental rights is ordered, except for emergency removals to prevent harm to an Indian child, testimony of a qualified expert witness is required. A qualified expert witness can include a member of the child's tribe, a lay expert having substantial experience in services to Indians, or a professional person having substantial education and experience in his or her specialty.

Ala. Admin. Code r. 660-5-36-.03

New Rule: Filed December 20, 2007; effective January 24, 2008.

Author: Margaret Livingston

Statutory Authority: 25 United States Code, Chapter 21 §1901 -1923.