Montana Code 41-3-1307. Determination of Indian tribe
41-3-1307. (Temporary) Determination of Indian tribe. (1) If the Indian child is a member of or eligible for membership in only one tribe, that tribe must be designated as the Indian child‘s tribe.
Terms Used In Montana Code 41-3-1307
- 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
- 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
- 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
- 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
(2)If the Indian child meets the definition of Indian child through more than one tribe, deference must be given to the tribe in which the Indian child is already a member, unless otherwise agreed to by the tribes.
(3)(a) If the Indian child meets the definition of Indian child through more than one tribe because the child is a member in more than one tribe or the child is not a member of but is eligible for membership in more than one tribe, the court shall provide the opportunity in any involuntary child custody proceeding for the tribes to determine which tribe should be designated as the Indian child’s tribe.
(b)If the tribes are able to reach an agreement, the court shall designate the agreed-on tribe as the Indian child’s tribe.
(c)If the tribes are unable to reach an agreement, for the purposes of this part the court shall designate as the child’s tribe the tribe with which the child has the more significant contacts as the Indian child’s tribe. In making the designation, the court shall consider:
(i)the preference of the parents for membership of the child;
(ii)the length of the child’s past residence or domicile on or near the reservation of each tribe;
(iii)the tribal membership of the child’s custodial parent or Indian custodian;
(iv)the interest asserted by each tribe in the child custody proceeding;
(v)whether there has been a previous adjudication with respect to the child by a court of one of the tribes; and
(vi)self-identification by the child, if the child is of sufficient age and capacity to meaningfully self-identify with a tribe.
(4)A determination of the Indian child’s tribe for the purposes of this part does not constitute a determination for any other purpose. (Terminates June 30, 2025–sec. 55, Ch. 716, L. 2023.)