(Revision. 9/1/13)
25 U.S.C. § 1911 Indian Child Welfare Act of 1978 (P.L. 95-608)
Alaska Child in Need of Aid Rule 23
Authority of Tribes to Assert Jurisdiction: Under federal law and Alaska Supreme Court case law, federally-recognized Tribes have jurisdiction over child custody proceedings (as defined in the Indian Child Welfare Act) involving their children. There are two types of jurisdiction: exclusive jurisdiction and concurrent jurisdiction.
Concurrent Jurisdiction: For most proceedings involving an Alaska Native or Indian child, concurrent jurisdiction means that either the state or the child’s Tribe can file for custody and hear a child protection case in its court. Federally-recognized Tribes that do not have exclusive jurisdiction over child custody proceedings involving their children have concurrent jurisdiction, which means the state also has jurisdiction over children from these Tribes who reside or are present in Alaska.
When a child custody proceeding is initiated in state court, the child’s Tribe has the right to intervene and participate as a Party to the Case.
Upon request by the child’s Tribe, a parent, or an Indian Custodian, the state court shall transfer the proceeding to the jurisdiction of the child’s Tribe, unless the court finds good cause to the contrary or a parent objects or the Tribe declines the transfer. If the case is transferred to the Tribe, the state court case will be dismissed.
Exclusive Jurisdiction: Exclusive jurisdiction means that only one government has authority to hear a case. In certain instances, Alaska Tribes may have exclusive jurisdiction over child protection proceedings. This includes:
Child custody proceedings involving children from the Native Village of Barrow, the Native Village of Chevak, and the Metlakatla Indian Community on the Annette Islands.
Child custody proceedings involving a child deemed a ward of the Tribal court where the Tribe that initiated the proceedings had exclusive jurisdiction over the child.
Full Faith and Credit: The State of Alaska follows the requirement under ICWA to recognize court orders from Indian Tribes in ICWA child custody proceedings to the same extent that Alaska recognizes such orders from other states.
Department’s Duty and Authority Where Exclusive Jurisdiction Exists:
The department is required to investigate all protective services reports (PSRs) received pertaining to children in Alaska, including reports regarding Tribal children residing within a village that has exclusive jurisdiction.
The department has the authority to take emergency custody of any child who resides or is present in Alaska under circumstances described in AS 47.10.142, including a child whose Tribe has exclusive jurisdiction. If the department assumes emergency custody of a child whose Tribe has exclusive jurisdiction, the Protective Services Specialist (PSS) will notify the Tribe within 24 hours of taking custody. The PSS will provide the Tribe with the results of the assessment and a report on the action taken. The case will be transferred to the Tribe, and the PSS will close the case.
After completing an assessment of a PSR pertaining to a Tribal child that is a member of a Tribe or village that has exclusive jurisdiction, if it is determined that emergency custody is not warranted, the PSS will provide the results of the assessment to the Tribe if requested and close the case. (See Section 2.2.3.1 Conducting an Investigation and Assessment for guidance on informing a child’s Tribe about a PSR and providing results of an initial assessment).
Department’s Duty and Authority When a Petition to Transfer Jurisdiction is Filed:
Petition to Transfer Jurisdiction:
The child’s Tribe, parent, or Indian custodian may file a petition to transfer jurisdiction to the Tribe. The petitioner may file an amended petition to correct any deficiencies.
If there is disagreement about what position the department should take, the PSS and the PSS IV will consult with the Protective Services Manager I. The department must file a response to the petition within 20 days after service of the petition.
Procedures Upon Transfer of Jurisdiction:
When the state court issues an order transferring jurisdiction over a child custody proceeding, the Tribe may either accept or decline jurisdiction. Transfer of jurisdiction is not complete unless and until the Tribe accepts jurisdiction. This acceptance could be in the petition to transfer. The department will not cease services with the family unless and until the Tribe notifies the department that it has accepted jurisdiction.
If the Tribe accepts jurisdiction, the PSS should request a staffing with all relevant state workers, including the Regional ICWA Specialist, to ensure a smooth transfer of the case to the Tribe. The PSS will consult with the AAG regarding records from the case file to be provided to the Tribe and will arrange for release of PFD Trust Funds and other benefits.
The PSS and Regional ICWA Specialist will meet with the Tribe, either in person or over the phone, to discuss the transfer of records, release of funds, and other matters to ensure a smooth transfer from state to Tribal court.
Procedures for the Transfer of Placement and Care Authority (custody) from OCS to a Tribal Title IV-E Agency or an Indian Tribe with a Title IV-E Agreement:
If a Title IV-E eligibility determination has not yet been made for the child, the PSS will take action as needed to ensure that a determination is made prior to the transfer.
If the Tribe or Tribal agency has a Title IV-E agreement, OCS will provide to the Tribe or Tribal agency essential documents and information necessary to continue a child’s eligibility under title IV-E and Medicaid programs under title XIX, including but not limited to the following:
All judicial determinations to the effect that continuation in the home from which the child was removed would be Contrary to the Welfare of the child and that reasonable efforts to prevent the removal and to implement the permanency plan for the child have been made;
Other documentation OCS has that relates to the child’s eligibility for Title IV-E foster care, adoption assistance, or guardianship assistance;
Information and documentation available to OCS regarding the child’s eligibility or potential eligibility for other Federal benefits;
The case plan, including the child’s health and education records; and
Information and documentation of the child’s placement settings, including a copy of the most recent provider’s license or approval.
Once the Tribe has exercised its jurisdiction, the department’s financial and case management responsibilities toward the family cease. However, if the department receives a subsequent PSR regarding the family, the department will assess the report and provide the results of the assessment to the Tribe for further action.