(a) As used in this division, unless the context requires otherwise, the terms “Indian,”“Indian child,” “Indian child’s tribe,” “Indian custodian,” “Indian tribe,” “reservation,” and “tribal court” shall be defined as provided in Section 1903 of the Indian Child Welfare Act (25 U.S.C. Sec. 1901 et seq.).
(b) As used in connection with an Indian child custody proceeding, the term “Indian child” also means an unmarried person who is 18 years of age or over, but under 21 years of age, who is a member of an Indian tribe or eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe, and who is under the jurisdiction of the dependency court, unless that person or his or her attorney elects not to be considered an Indian child for purposes of the Indian child custody proceeding. All Indian child custody proceedings involving persons 18 years of age and older shall be conducted in a manner that respects the person’s status as a legal adult.
(c) As used in connection with an Indian child custody proceeding, the terms “extended family member” and “parent” shall be defined as provided in Section 1903 of the Indian Child Welfare Act.
(d) “Indian child custody proceeding” means a “child custody proceeding” within the meaning of Section 1903 of the Indian Child Welfare Act, including a proceeding for temporary or long-term foster care or guardianship placement, termination of parental rights, preadoptive placement after termination of parental rights, or adoptive placement. “Indian child custody proceeding” does not include a voluntary foster care or guardianship placement if the parent or Indian custodian retains the right to have the child returned upon demand.
(e) If an Indian child is a member of more than one tribe or is eligible for membership in more than one tribe, the court shall make a determination, in writing together with the reasons for it, as to which tribe is the Indian child’s tribe for purposes of the Indian child custody proceeding. The court shall make that determination as follows:
(1) If the Indian child is or becomes a member of only one tribe, that tribe shall be designated as the Indian child’s tribe, even though the child is eligible for membership in another tribe.
(2) If an Indian child is or becomes a member of more than one tribe, or is not a member of any tribe but is eligible for membership in more than one tribe, the tribe with which the child has the more significant contacts shall be designated as the Indian child’s tribe. In determining which tribe the child has the more significant contacts with, the court shall consider, among other things, the following factors:
(A) The length of residence on or near the reservation of each tribe and frequency of contact with each tribe.
(B) The child’s participation in activities of each tribe.
(C) The child’s fluency in the language of each tribe.
(D) Whether there has been a previous adjudication with respect to the child by a court of one of the tribes.
(E) Residence on or near one of the tribes’ reservations by the child parents, Indian custodian or extended family members.
(F) Tribal membership of custodial parent or Indian custodian.
(G) Interest asserted by each tribe in response to the notice specified in Section 224.2.
(H) The child’s self-identification.
(3) If an Indian child becomes a member of a tribe other than the one designated by the court as the Indian child’s tribe under paragraph (2), actions taken based on the court’s determination prior to the child’s becoming a tribal member continue to be valid.
(Amended by Stats. 2010, Ch. 468, Sec. 1. (AB 2418) Effective January 1, 2011.)
Last modified: October 25, 2018