Are the guidelines for determining custody different if the child involved is eligible to be or is a member of a Native American tribe?
ANSWER Native Americans retain a special status different from non-Native Americans based on the historical relationship between the United States and a sovereign indigenous people as well as from the legislative goals of the Indian Child Welfare Act of 1978. The Indian Child Welfare Act, 25 U.S.C. 1901, et seq., contains procedural and substantive provisions for custody proceedings and is intended to protect the best interests of an Indian child and to promote the stability and security of Indian tribes. A court must abide by the following statutory presumptions which are viewed as being in the best interests of an Indian child: (1) a tribal court to decide the child’s future; (2) the relationship between the child and the child’s tribe be supported and retained; and (3) the child must be placed in a home, either temporarily or permanently, where the child’s racial and cultural identity will be secured.
