Legal Question in Native American Law in South Dakota

Indian Child Welfare Act

Our daughter, a non Indian, has a 17th month old daughter, whose father is Native American. The father has not had any contact with the child for at least 11 months, including not making any court ordered support payments. Our daughter was granted sole custody of the child last November, and the father was not given any visitation rights. Our daughter has never lived on the reservation, nor has her 17th month old daughter. During the 6 months that the father did have contact with the child, he lived with our daughter in non reservation communities.

Our daughter is now married, and her husband would like to adopt the child. We were in court on July 2, 2002 to petition the court to remove the fathers parental rights. The father would not voluntarily agree to this, so the case was continued until July 17, 2002. At this time the court will determine if the child was abandoned by the father. My question is: Does the Indian Child Welfare Act apply to this case? The child is not being removed from her natural mother, and the child has never lived on a reservation. We have been told that if we do nothing (not proceed with the termination of parental rights), the tribal court will not step in.


Asked on 7/12/02, 2:29 am

1 Answer from Attorneys
Charles Aspinwall Charles S. Aspinwall, J.D., LLC

Re: Indian Child Welfare Act

The question turns on whether or not the tribe recognizes the child as an enrolled member. Probably it does not if the child has never resided on tribal lands. Tribal membership under such circumstances is not automatic. Someone would have to have made application for tribal membership in this case, and it would have to have been granted in order for the ICWA to apply. Just because one has Native American blood by birth does not necessarily legally consitute one a tribal member if there has been no other affiliation with the tribe.

The child off the reservation is under the jurisdiction of the civil courts. They are free to deal with the status of children with Native American blood who are not enrolled members of a recognized tribe or pueblo.

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Answered on 7/12/02, 7:37 am


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