Indian Legal Issues
Indian Child Welfare Act (ICWA) About ICWA
Enacted in 1978, the Indian Child Welfare Act (“ICWA”) sought to reduce the alarming rate of Indian child removals. At the time, experts estimate that one third of American Indian children had been removed from their families and placed into the homes of non-Indians. This caused great injury to many Indian communities. ICWA preserves Indian culture by adding procedural protections before a state court can remove an Indian child into a non-Indian home. It also strengthens Indian sovereignty by requiring state courts to transfer custody cases to tribal courts. If a state court does not comply with ICWA, the child, the child’s parent or Indian custodian, and the child’s tribe may all petition any court with jurisdiction to invalidate the order. ICWA does not place a time limit on how long a person or tribe has to petition the court to invalidate the order.
Your Rights Under ICWA
– Transfers to Tribal Court –
Both ICWA and Nevada law may require a state court to transfer a custody case to tribal court, even if the child does not live on the reservation.
Either one of the child’s parents, custodian, or Indian tribe to which the child belongs can petition the state court for transfer.
– Notice of Proceedings in State Court –
Under ICWA, the party seeking to remove the child from the child’s Indian family must notify the child’s parents and the child’s tribe whenever there is an involuntary proceedings involving foster care placement or termination of parental rights in state court.
– Termination of Parental Rights –
A state court cannot order the foster care placement or termination of parental rights without “expert witness” testimony that continued custody by the parent or custodian is likely to result in serious emotional or physical damage to the child.
– Adoption Preferences –
If an adoption case remains in state court, ICWA requires the state court to follow certain preferences when placing the child in an adoptive or foster home. When placing the child in an adoptive home, the state must place the child, in this order of preference, with: (1) the child’s extended family,(2) other members of the child’s tribe, then, (3) any other Indian family.
Other preferences apply for placement in a foster home.
– Invalidation of Placements –
ICWA allows a parent to petition to invalidate an adoption if the parent consented to the adoption because of pressure or misleading information. A parent can invalidate for up to two years after the child has been adopted.
ICWA also allows a parent to withdraw consent to place the child in foster care. A parent can withdraw consent at any time.
– Right to Counsel –
If you are an indigent parent or custodian, you have the right to a court-appointed lawyer in any case involving removal or placement of an Indian child from his or her parent or custodian, as well as in any case involving the termination of parental rights to an Indian child.
Does ICWA Apply to My Case?
ICWA applies any time a state court tries to:
Ø Place an Indian child in foster care
Ø Place an Indian child in pre-adoptive foster care
Ø Place an Indian child in an adoptive home, or
Ø Terminate the parental rights of an Indian child
ICWA Does Not Apply To:
Ø Custody disputes between parents and extended family members
Ø Custody disputes between natural parents
Ø Emergency removals of Indian children not on tribal lands
ICWA only applies if the child involved is:
Ø A member of an Indian tribe, or
Ø Eligible for membership in a tribe in which the mother or father belongs
Does an unwed father have any rights under ICWA?
ICWA’s definition of parent does not include an unwed father where paternity has not been established. If an unwed father wants to assert his rights under ICWA, he must attempt to acknowledge or establish his fatherhood. If he does not do so and the child’s Indian blood comes only from the father, the child may not be considered an Indian child under ICWA.
Additionally, an unwed father has no rights under ICWA if he has not had custody of the child prior to the child’s adoption.
Establishing paternity may have other legal implications. In order to obtain legal assistance you should seek an attorney.
Last Review and Update: Aug 14, 2014
Indian Child Welfare Act Brochure
Indian Health Services (IHS)
Information about the IHS
Indian Health Services (IHS) is a combination of tribal, federal, and contract health service facilities that provide general and emergency medical care for eligible Indians.
WHO IS ELIGIBLE FOR INDIAN HEALTH SERVICES?
To be eligible, a person must be:
- A person of Indian descent;
- A non-Indian woman pregnant with an eligible Indian’s child (but only during the pregnancy and about 6 weeks after delivery); or
- Non-Indian members of an eligible Indian’s household if the medical officer in charge determines this is necessary to control acute infectious disease or a public health hazard.
WHAT IS “INDIAN DESCENT”?
A person must meet at least one of the following:
- Be regarded by the community to be Indian or Alaska Native;
- Be an enrolled member of an Indian or Alaska Native Tribe;
- Reside on tax-exempt land or live on restricted property;
- Actively participates in Tribal affairs; or
- Any other reasonable factor indicative of Indian descent.
HOW TO APPLY FOR INDIAN HEALTH SERVICES
To apply for IHS services, go to the IHS facility nearest you and present your tribal enrollment card or your Beneficiary Identification Card. You will have to provide some personal information and fill out some forms. At that time, IHS will inform you of your rights and what specific services, if any, you are eligible to receive.
IHS has an “open door” policy in which all Indian descendants should be provided direct health care at their clinics and hospitals. Indians who are not members of the tribe where the IHS facility is located should still be provided direct services. Also, there currently is no requirement for patients to apply for an Alternate Resource when receiving direct care services from a clinic.
PRIORITIES WHEN RESOURCES ARE INSUFFICIENT
The program may prioritize care and treatment among individuals. Priorities may be based on medical need and access to other medical care.
CONTRACT HEALTH SERVICES (“CHS”)
A person may need medical care beyond what the local IHS clinic can provide. In this case, the person may request “contract health services” or CHS, where IHS may pay for services provided by a non-IHS provider. Referrals are not a guarantee for payment by IHS. Indians eligible for direct care are not automatically eligible for CHS. In order to qualify for contract health services, the patient must meet the residency, notification, medical priority, and alternate resources requirements.
The residency requirements require that you either live on the reservation or live in the county of the Contract Health Service Delivery Area for your tribe. If you do not live on the reservation you must be a member of the tribe located on the reservation or maintain close economic and social ties with that tribe.
The notification requirements require you to get prior approval for each case or give notice within 72 hours for emergency cases.
Payment may then be approved if the health care service that you need is “medically necessary,” the service is not accessible at IHS or tribal facility, and the facility’s CHS committee determines that your case is within the current medical priorities of the facility. If CHS funds are insufficient to pay for all needed services the committee considers each individual’s medical condition to rank cases in medical priority. Thus, each visit to a contract health services provider is distinct and must be examined individually to determine eligibility.
Lastly, you must apply for any alternate resources for which you may be eligible, such as Medicare, Medicaid, insurance, etc.
A contract health services program cannot establish a cap on certain procedures, such as dental procedures, or eyeglasses. If a health service is within medical priorities, CHS must pay for the full amount of the service. CHS also applies to non-Indian children if they are the natural, adopted, step-child, foster child, legal ward, or orphan of an eligible Indian.
THE RIGHT TO APPEAL DENIALS OF INDIAN HEALTH SERVICES
If IHS denies your application for health services it must notify you of that denial in writing. For CHS, the written denial must contain a statement of all of the reasons for the denial. The notice shall advise the applicant for CHS that he or she may file for reconsideration or appeal within 30 days of receipt of the notice.
Reconsideration is appropriate when new documentation is submitted; otherwise, the applicant may appeal the denial to the Service Unit Director. A request for reconsideration or appeal shall be in writing and shall set forth the grounds supporting the request or appeal. If the original or reconsidered decision is affirmed on appeal by the Area or Program Director, the applicant shall be notified in writing and advised that further appeal may be taken to the Director of the Indian Health Service within 30 days of receipt of the notice.
PATIENT RIGHTS AND GRIEVANCES
Each Indian Health service Area is required to develop and promulgate a written statement of patient rights. Each Service Area also must have a designated grievance committee to handle patient grievances. Appeals will go to the Service Unit Director, who must initiate an investigation and provide a written reply within specified periods of time. Unresolved complaints may then be appealed to the Area Health Board or the Area Director. Written explanations of the grievance process and patient rights must be posted prominently in the waiting areas, periodically distributed to the community, and included in the orientation process for all new IHS staff.
INDIAN HEALTH SERVICE UNITS AND HEALTH CARE FACILITIES IN NEVADA
Elko Health Center
515 Shoshone Circle
Elko, NV 89801
Ely Shoshone Tribe
Newe Medical Clinic
400 A Newe View
Ely, NV 89301
Duckwater Health Station
511 Duckwater Falls Road
Duckwater, NV 89314
Fallon Tribal Health Clinic
1001 Rio Vista Drive
PO Box 1980
Fallon, NV 89406
775-423-3634 ext. 223
Fort McDermitt Health Station
112 North Reservation Road
PO Box 457
McDermitt, NV 89421
Owyhee Community Health Facility
US PHS Nevada Hwy 225
PO Box 130
Owyhee, NV 89832
Pyramid Lake Tribal Health Clinic
705 Hwy 446
PO Box 227
Nixon, NV 89424
Reno Sparks Tribal Health Clinic
1715 Keunzli Street
Reno, NV 89502
Schurz Service Unit
Schurz Indian Health Center
Schurz, Nevada 89427
Walker River Tribal Health Clinic
1025 Hospital Road
PO Drawer C
Schurz, NV 89427
Washoe Tribal Health Center
1559 Watasheamu Road
Gardnerville, NV 89460
Yerington Tribal Health Clinic
171 Campbell Lane
Yerington, NV 89447
775-463-3335 / 775-883-3895
Indian Health Services Brochure
American Indian Probate Reform Act (“AIPRA”)
Information about AIPRA
The American Indian Probate Reform Act (“AIPRA”) of 2004 changes the way your trust land and Individual Indian Money (“IIM”) accounts, or “trust property,” are distributed to your heirs after you pass away. It only applies to people who die on or after June 20, 2006, and it does not apply to property that is held out of trust, such as checking or savings accounts and vehicles.
AIPRA creates a federal probate code for all Indian reservations in the United States, except for Alaska. Tribes can also write their own tribal probate codes, which will supersede AIPRA’s federal probate code once they are approved by the Secretary of the Interior. In turn, states are no longer involved in the distribution of trust property owned by Indians.
WHAT IS THE PURPOSE OF AIPRA?
The purpose of AIPRA is to combat fractionation of Indian land, encourage consolidation of interests in Indian land, and preserve the trust status of Indian lands.
WHAT IS FRACTIONATION?
Fractionation occurs when interests in land are passed down over many generations, causing the number of owners of a single piece of land to become larger and larger, which results in the size of each share of land getting smaller and smaller. Each owner then possesses only a mere fraction of the original parcel.
Fractionation poses a big problem because the trust land is split up between many owners who may disagree about how the land should be used. As a result, the land is not used efficiently. AIPRA encourages the efficient use of land.
DYING WITH A WILL
New provisions in AIPRA make writing a will very important. A will is a written instrument that describes how you want your property distributed after your passing. Without a will, your property may pass to unexpected people, and your property may even be sold without the consent of your heirs. You should write a will to ensure that your property is distributed according to your wishes.
Under AIPRA, you can draft a will giving your trust property to any “Indian” person, any co-owners of the property, the tribe who has jurisdiction, and any of your children, grandchildren, and great grandchildren, even if they do not meet the definition of an Indian person.
Definition of an “Indian” Person:
Must meet one of the following:
- Member of a tribe that was federally recognized in 1934.
- Eligible to become a member of a federally recognized Indian tribe.
- Trust owner of an undivided interestin trust land on October 27, 2004.
- Meets the definition of Indianunder the Indian Reorganization Act (“IRA”) of 1934 by being enrolled in an IRA tribe, have an aggregate of ½ Indian blood from any tribe, or be a descendant of an IRA tribal member who was living on a reservation in 1934.
- Person of any degree of Indian ancestry who owns trust land or restricted land in California.
DYING WITHOUT A WILL
If you own more than 5% of the entire property:
If you die without a will and you own more than 5% of the entire property, your property will be distributed to “eligible heirs” who are either “Indian,” descendants within two generations of an Indian, or co-owners of the same property. Land not passing to one of these people will then pass to the tribe where the land is located.
If you own less than 5% of the entire property:
If you die without a will and you own less than 5% of the entire property, only your oldest eligible child may inherit your property. If you do not have a child, then it goes to your oldest eligible grandchild, and then to your oldest eligible great-grandchild. This is called the “single heir rule” because your property only passes to one heir, thereby avoiding fractionation of the land. The only exception to this rule is invoked if your spouse survives you and is living on your land, in which case the spouse will receive a life estate, where he or she is allowed to live on your land during his or her lifetime.
Importantly, if you do not write a will and you own less than 5% of the entire property, your share could be sold without your consent or the consent of your heirs. Co-owners of the property, the tribe, or other heirs have the option of purchasing your share at fair market value. The proceeds from the sale of the land are then distributed to your heirs.
AIPRA provides individuals and tribes with more opportunities to consolidate, or combine together, their fractionated interests in land.
You can consolidate your interests in land by:
- Gifting all of your interests to the tribe.
- Gifting all of your interests to one person.
- Dividing your land into solely owned parcels for your children instead of passing on fractionated shares of your land to your children.
- Gifting your interest in land to other heirs instead of inheriting it yourself.
- Selling your interest in land to other heirs in exchange for money, instead of inheriting it yourself.
- Creating a joint tenancy for your interests by will or deed.
FOR MORE INFORMATION
Call the Trust Beneficiary Call Center at: (888) 678-6836, x. 888
Or check out the following websites:
Last Review and Update: Aug 14, 2014