The County Social Services Agency's Burden Under ICWA and N.C. Chapter 7B to Identify Indian Children.

What burden falls upon a county DSS to ascertain whether a child is an “Indian Child” as defined by the Indian Child Welfare Act?

Unfortunately, there is no overt guidance to be found in the Juvenile Code.

The closest to such guidance can be found at North Carolina General Statute 7B-200 (jurisdiction) which provides subject matter jurisdiction to the District Court “over any case involving a juvenile who is alleged to be abused, neglected, or dependent” and  “[p]roceedings to terminate parental rights.” N.C. Gen. Stat. 7B-200. This jurisdiction is subject to one essential caveat: that state conferred jurisdiction not be pre-empted by federal law, specially the Indian Child Welfare Act (ICWA) which governs Indian children, as a specific subset of juveniles who might otherwise fall within the jurisdiction of a North Carolina District Court.

According to ICWA, an Indian Child is any “unmarried person who is under the age of eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in and Indian tribe and is the biological child of a member of an Indian tribe.”  See 25 U.S.C. §1903(4) (2006). Furthermore, an Indian tribe is “any Indian tribe, band, nation, or other organized group or community of Indians recognized as eligible for the services  provided to Indians by the Secretary (of the Interior) because of their status as Indians, including any Alaskan Native village.”  See 25 U.S.C. §1903(8) (2006).

So it seems that at a minimum a social worker for a county department of social services should ask in the course of an assessment or investigation whether a child is (a) a member of federally recognized Indian tribe or (2) whether the child is eligible for membership in an Indian tribe and whether a parent is a member of an Indian tribe.

With that question answered, three points of observation should be made at this juncture. First, it very often will be the case that when a social worker asks a parent the afore-mentioned question , all manner of lore is coughed up about genealogical connections to tribes of every description. Very often the dialogue will resemble something like the following:

Q:           “Is Johnny (Susanne, Cheyenne, April, Bill, etc.) a member of federally recognized Indian  tribe or is the child is eligible for membership in an Indian tribe? Are you, the parent of    Johnny (Susanne, Cheyenne, April, Bill, etc. ) a member of an Indian tribe?”

A.            “Well, my uncle was part Cheyenne Indian and my cousin was half Blackfoot.”

Obviously, such answers not only do not answer the question but they also do not convey the necessary information to lead to a mad dash to contact an identified tribe. The social worker should make sure that the answer is properly answered and only the proper answer is recorded in dictation and reported to the court.

Second, if the respondent does answer the afore-mentioned question correctly and affirmatively, verification is warranted by contacting the identified federally recognized tribe as well as independent corroboration. As a recent North Carolina Court of Appeals case, In re L.W.S. has shown, parents are not always good historians and occasionally get the facts wrong. See In re L.W.S., __N.C. App.__,__S.E.2d__(September 5, 2017) (parent erroneously asserts that birth record identified child as Cherokee when birth records admitted into evidence fail to substantiate claim).

Third, even if a child is likely to be an Indian Child, while ICWA will likely govern the proceeding, the identified tribe has the final say on whether the child is an actual Indian Child and whether it will exercise its right to intervene. See 25 C.F.R. § 23.108(a-b) (2017). Thus, if a positive identification occurs of a suspected Indian Child, the county department of social services has a burden to contact the Indian parents, Indian custodians and the child’s tribe by certified mail. See 25 C.F.R. § 23.11(a) (2011). Only when the tribe gives an answer affirmatively , negatively or (by proxy negatively) by not answering back is the inquiry complete.

As was noted in the case of In re L.W.S., the burden of identifying whether a child is an Indian Child is part of the function of the North Carolina District Court when it factually determines whether subject matter jurisdiction exists. In re L.W.S., __N.C. App.__,__S.E.2d__(September 5, 2017) (footnote 4). The trial court will not be able to discharge its judicial responsibility if it cannot obtain the necessary facts to ascertain and find that subject matter jurisdiction exists and if so, whether that is under N.C. Gen. Chapter 7B or ICWA. While it is true that the burden of proof lies with an individual who seeks to invoke ICWA (see In re C.P., 181 N.C. App. 698, 641 S.E.2d 13 (2007), it nevertheless is the burden of the petitioner to provide the trial court competent factual evidence to establish subject matter jurisdiction.

Thus in summary, to answer the question as to what constitutes the burden of a county department of social services of identifying an Indian Child,  the county department of social services must ask the proper questions under ICWA, must follow up with the identified tribe, and report these facts to the court. Beyond this, the burden lies with other parties or with the trial court.