Montana Code 41-3-1306. Determination of Indian status — confidentiality of records
41-3-1306. (Temporary) Determination of Indian status — confidentiality of records. (1) (a) A party seeking the foster care placement of, termination of parental rights over, or adoption of a child shall use due diligence to determine whether the child is an Indian child. The inquiry must be made in consultation with:
Terms Used In Montana Code 41-3-1306
- Child custody proceeding: means any state or private proceeding, other than an emergency proceeding, that may culminate in a foster care placement, termination of parental rights, preadoptive placement, or adoptive placement. See Montana Code 41-3-1303
- Department: means the department of public health and human services provided for in 2-15-2201. See Montana Code 41-3-1303
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Foster care placement: means an action removing an Indian child from the child's parent or Indian custodian for temporary placement in a foster home or institution or with a relative, guardian, conservator, or suitable other person under which the parent or Indian custodian may not have the child returned on demand but parental rights have not been terminated. See Montana Code 41-3-1303
- Indian: means a person who is a member of an Indian tribe or who is an Alaska Native and a member of a regional corporation as established in 43 U. See Montana Code 41-3-1303
- Indian child: means an unmarried Indian person who is under 18 years of age and who is:
(a)a member of an Indian tribe; or
(b)eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe. See Montana Code 41-3-1303
- Indian custodian: means an Indian person who under tribal law, tribal custom, or state law has legal or temporary physical custody of an Indian child or to whom the parent has transferred temporary care, physical custody, and control of the Indian child. See Montana Code 41-3-1303
- Indian tribe: has the meaning provided in 41-3-1303. See Montana Code 41-3-102
- membership: means a determination by an Indian tribe that an individual is a member of or eligible for membership in that Indian tribe. See Montana Code 41-3-1303
- Obligation: An order placed, contract awarded, service received, or similar transaction during a given period that will require payments during the same or a future period.
- Parent: means a biological parent of an Indian child or an individual who has lawfully adopted an Indian child, including adoptions made as tribal customary adoptions. See Montana Code 41-3-1303
- Termination of parental rights: means any action resulting in the termination of the parent-child relationship. See Montana Code 41-3-1303
- Testimony: Evidence presented orally by witnesses during trials or before grand juries.
- Tribal court: means a court or body vested by an Indian tribe with jurisdiction over child custody proceedings. See Montana Code 41-3-1303
- tribe: means 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. See Montana Code 41-3-1303
- Writing: includes printing. See Montana Code 1-1-203
(i)the child’s parent or parents;
(ii)an individual who has custody of the child or with whom the child resides;
(iii)any other individual who reasonably may be expected to have information regarding the child’s possible membership or eligibility for membership in an Indian tribe; and
(iv)any Indian tribe of which the child may be a member or may be eligible for membership. The consultation with a tribe must be made by contacting the tribe in writing.
(b)The inquiries required under this subsection (1) must be documented in the record.
(2)Preliminary contacts for the purpose of using due diligence to determine a child’s possible Indian status do not constitute legal notice as required by 41-3-1311.
(3)A court shall ask each participant in an emergency proceeding or voluntary or involuntary child custody proceeding whether the participant knows or has reason to know that the child is an Indian child. The inquiry must be made at the commencement of the proceeding and all responses must be on the record. The court shall instruct the parties to inform the court if they subsequently receive information that provides reason to know the child is an Indian child.
(4)If there is reason to know the child is an Indian child but the court does not have sufficient evidence to determine that the child is or is not an Indian child, the court shall confirm, by way of a report, declaration, or testimony included in the record, that the department or other party used due diligence to identify and work with all tribes of which there is reason to know the child may be a member or eligible for membership to verify whether the child is a member or eligible for membership.
(5)A court, on conducting the inquiry required in subsection (3), has reason to know that a child involved in an emergency proceeding or child custody proceeding may be an Indian child if:
(a)any participant in the proceeding, officer of the court involved in the proceeding, Indian tribe, Indian organization, or agency informs the court that:
(i)the child is an Indian child; or
(ii)it has discovered information indicating that the child is an Indian child;
(b)the child who is the subject of the proceeding gives the court reason to know the child is an Indian child;
(c)the court is informed that the residence or domicile of the child, the child’s parent, or the child’s Indian custodian is on a reservation or in an Alaska Native village;
(d)the court is informed that the child is or has been a ward of a tribal court;
(e)the court is informed that either of the parents or the child possesses an identification card indicating membership in an Indian tribe; or
(f)the court determines from additional information provided that the child may be an Indian child.
(6)(a) When seeking verification of a child’s Indian status during a voluntary proceeding, the court shall keep relevant documents pertaining to the inquiry confidential and under seal if a consenting parent expresses either orally or in writing a desire for anonymity. A request for anonymity does not relieve the court, agency, or other party from any duty of compliance with this part, including the obligation to verify whether the child is an Indian child.
(b)A tribe receiving information related to an inquiry of a child’s status as an Indian child must keep documents and information confidential.
(7)A written determination by an Indian tribe regarding the child’s status as an Indian child is conclusive that the child is an Indian child. (Terminates June 30, 2025–sec. 55, Ch. 716, L. 2023.)