Ultimately the judge has the final control of placement decisions, however, he is bound by his judicial oath to follow the laws that govern the placement of Indian children. At this time the federal Indian Child Welfare Act is that law that covers these issues and supersedes any state law to the contrary. However, states may adopt their own state Indian Child Welfare Acts if the state law strengthens or expands the federal law and does not take away or modify the original intent of the federal mandates. In such a case, the higher standard of protection applies.
Legal Reference: 25 U.S.C. #sect# 1921 Higher State or federal standard applicable to protect rights of parent or Indian custodial of Indian child.
To the Cherokee Nation, the most critical consequence is a disrupted placement. If a state court does not follow federal law and allows an illegal placement to continue for an extended period of time the correction of such an error will cause placement change. Depending on the length of time involved before the correction is made, the disruption could have long-term effects on the child. Some courts have made such placement errors and depend on the length of time necessary for appeal to cement the placement and declare "bonding" as a reason for "good cause" not to move the child to an Indian placement. This is a flagrant attempt to circumvent the law at the child's expense. The law is clear on preference placements and the court's responsibility to follow them. The best defense that the tribe has in such issues is a legal appeal. Appeals are never the first option of Cherokee Nation but we are ready to do so when such placement violations are blatant and Cherokee Nation has offered to provide an alternative placement that meets the needs of the child.
Legal Reference: 25 U.S.C. #sect# 1914 Petition of court of competent jurisdiction to invalidate action upon showing of certain violations
The law states that the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the tribe. This could be the court, attorney, private agency or state agency who is seeking placement action in an Indian child custody proceeding.
Legal Reference: 25 U.S.C. #sect# 1912 Pending Court Actions, Section (a)
According to law, notice must be sent by registered mail with return receipt requested, of the pending proceeding and of the tribe's right to intervene. This method would guarantee compliance with federal law and would not create a situation for appeal due to lack of proper notice.
Cherokee Nation is interested in the timely notification so that we can be involved from the beginning of the case. This helps to ensure that all steps are done according to law. Cherokee Nation has accepted notice through fax communication and will continue to do so as long as this assists the court in the more timely notice. Our fax number is 918-458-6146. We would suggest you follow-up by sending notice according to established ICWA standards. Our choice to accept faxed information is strictly to assist courts in meeting time constraints and in no way indicates that the federal law should not be followed or that any other tribe would choose to do the same.
Without this information, there will be delays in processing the children to determine eligibility for tribal membership and return notification to the party needing such information to proceed legally. Cherokee Nation receives approximately 700 such requests each month and we average about two to three weeks from the time of receiving your notice until you get a reply. Any missing information from you only delays that process. Please help us help you.
Legal Reference: 25 U.S.C. #sect# 1912 (a) Notice
According to law, no foster care placement or termination of parental rights proceeding shall be held until at least 10 days after the tribe has received notice. The law also provides that the tribe shall, upon request, be granted up to twenty additional days to prepare for such proceeding. Therefore, early notification of the tribe should be a priority and is necessary under federal compliance before a hearing involving an Indian child can be legally held.
Several tribes now have websites that give that type of information. You can send all notice information for the Cherokee Nation to:
Cherokee NationAttention: ICWP.O. Box 948Tahlequah, OK 74465
If you are unable to locate a website for the particular tribe you need, the Bureau of Indian Affairs maintains a list of the current mailing addresses for all the tribes. You can contact the Bureau in your area to obtain this information. The regional BIA offices are located as follows:
