Welcome to the National Tribal Justice Resource Center's Tribal
Codes and Constitutions
Return to the
Main Tribal Codes and Constitutions Page
Return to Siletz Code Table of Contents
Last amended: 1999
|
ORDINANCE NUMBER 85-01 |
SECTION 1: PREAMBLE
The Confederated Tribes of Siletz Indians of Oregon recognizes that its future as a social and political entity depends greatly on the Youth of the Tribe. To assure the Tribe's future forever, the Siletz Tribal Council hereby establishes this Child Welfare Code.
SECTION 2: AUTHORITY OF TRIBAL GOVERNMENT
The Siletz Tribe is authorized by its Constitution (Article IV, Section 1) and the federal law (25 U.S.C. 711a) to legislate on matters of general concern to the Siletz Tribe. In addition, the Indian Child Welfare Act of 1978 (25 U.S.C. 1901 et seq.) affords the Siletz Tribe additional opportunities to participate in state court proceedings involving tribal families and their children, acknowledges tribal authority over certain child welfare proceeding and provides federal support for tribal programs to serve Indian children and families.
SECTION 3: GENERAL POLICY
The policy of the Siletz Tribe regarding family welfare shall be the following:
A. To protect the best interests of Siletz children, to prevent the unwarranted breakup of Siletz families and to promote the stability and security of the Siletz Tribe by establishing tribal standards for the permanent or temporary removal of Siletz children from their families.
B. To foster cooperative intergovernmental relations between the Siletz Tribe and the State of Oregon and other states in child welfare matters involving Siletz families and children.
C. To make available to Siletz children and families child welfare services that respect the traditions and the cultural values of the Siletz peoples.
SECTION 4: DEFINITIONS
As used in this code:
A. "Child custody proceeding" means any action by a tribal or non-tribal agency that may result in a Siletz child being removed from his or her parent or Indian custodian for placement in foster care of an adoptive home. The term does sot include a change of custody because of a child's criminal conduct or because of an award of custody to one of the parents in a divorce proceeding.
B. "Custodial interest" means the responsibility of a parent or other person or agency to provide for the physical and competent jurisdiction, a parent's custodial interests in a child are exclusive.
C. "Extended family" includes any relative eighteen years of age or older who is a Siletz child's grandparent, aunt or uncle, brother or sister, brother-in-law or sister-in-law, niece or nephew or first or second cousin. The term also includes any other person the Family Court finds to be a Siletz child's relative based on traditional family or tribal customs.
D. "Family Advocate" is the person employed by the Tribal Government to be responsible, for the administration of the Tribe's family welfare program.
E. "Family Welfare Committee" shall mean the five members of the Siletz tribe appointed by the Tribal Council to carry out the family welfare policy and procedures of the Tribe pursuant to the provisions of this ordinance.
F. "Indian Child Welfare Act" means Public Law 95-608, which is codified in Title 25 of the United States Code in Sections 1901-1963, or any amendments thereto.
G. "Indian custodian", means any Indian person who has lawful custody of a Siletz child under tribal law or custom or under state law, or who has temporary physical custody by permission of the parent of such child.
H. "Judicial hearing" means a formal or informal proceeding under this code to determine the legal rights, custodial interests, or needs of a specific Siletz child, family, or tribal member.
I. "Legal custodian" means a person or agency who has legal custody of the child but does not include a person who has only physical custody. A legal custodian has the responsibility to provide for a child's well-being by supplying the child with food, clothing, shelter and other necessities such as education and routine health care. In emergency situations, a legal custodian also may consent to medical treatment, including surgery, for the child.
J. "Legal custody" means a legal status created by order of a court of competent jurisdiction which vests a person or agency with the right to custody of a child, subject to any remaining rights, duties and responsibilities of the guardian of the child and to any residual parental rights and responsibilities. As used in this code, the term "legal custody" includes the term "wardship" as used in the Indian Child Welfare Act.
K. "Non-tribal agency" means any branch, department, division, or office, and any official, officer, or employee of a federal, state, local or tribal government other than the Siletz Tribe.
L. "Parent" means any natural parent or parents of a Siletz child or any Indian person who has lawfully adopted a Siletz M. "Person in need of services" means a Siletz child or tribal member whose situation warrants Family Court intervention because: (1) the child or parent has repeatedly disregarded or misused lawful parental authority; (2) the child has repeatedly failed to attend school; (3) the child has left home without approval; (4) the child, parent or legal custodian uses alcohol, drugs or other intoxicants to such an extent that such use has impaired the person's ability to satisfy basic personal or family responsibilities; (5) the child or parent is a party to a child custody proceeding in a non-tribal court; (6) the child has no parent, guardian, or legal custodian; or (7) the family of a child is in a social or legal situation that negatively affects its ability to provide for the physical or emotional well-being of the child without assistance. The term does not include a Siletz child if the only basis for the allegation is that the child's patent has placed the child with a member of the child's extended family.
N. "Siletz child" means any unmarried person who is under the age of 18 years and is a member of the Confederated Tribes of Siletz or is eligible for enrollment in the Confederated Tribes.
O. "Siletz Family Court" or "Family Court" means the judicial entity established to decide Siletz child welfare matters on behalf of the Siletz Tribe.
SECTION 5: ESTABLISHMENT OF COMMITTEE
The Siletz Family Welfare Committee hereby is established. The Committee shall consist of the Tribal Chairman and four other members appointed by the Tribal Council to carry out the responsibilities assigned by the Siletz Family Welfare Code. Two members of the first Committee appointed shall serve initial terms of three years. All remaining appointments to the Committee shall serve terms of two years.
SECTION 6: VACANCIES
In the event of the death, resignation or removal of a Committee member, the Tribal Chairman shall appoint another member to serve during the unexpired term. Such appointment must be approved by the Tribal Council
SECTION 7: REMOVAL FROM OFFICE
During a term of office, a Siletz Family Welfare Committee member may be removed only for cause after a hearing affording due process before the Tribal Council.
SECTION 8: GENERAL DUTIES
A. The Siletz Family Welfare Committee shall advise the Siletz Tribal Council on policy matters involving Siletz families.
B. Regular meetings of the Committee shall be held at least quarterly upon the call of the chairman or a majority of the Committee.
C. The Committee is authorized to do the following:
1. Provide liaison to non-tribal agencies.
2. Advise the Tribal Council and Family Welfare Court of the needs of Siletz families for child welfare services and advocate for their provision of services through tribal, state, federal and private resources.
3. Initiate family welfare proceedings before the Siletz Family Court in cases the Committee believes warrant such intervention.
4. Perform such other duties as the Tribal Council directs.
SECTION 9: APPROVAL OF FOSTER CARE HOMES
The Siletz Family Welfare Committee shall approve and license the home of any Siletz family desiring to provide foster care, which meets the minimum standards for foster care homes adopted by the Tribal Council. Approved homes shall be reevaluated at least annually to verify compliance with tribal standards.
SECTION 10: REPORTS ON SILETZ CHILD WELFARE PROGRAM
Upon request, but no less often than once each year, the family Welfare Committee shall report to the Tribal Council on its activities and on the unmet needs of Siletz children and families. Information which identifies specific Siletz children or families shall not be reported unless the Tribal Council directs that such information is necessary to evaluate the Family Welfare Committee and Court's effectiveness in carrying out this Ordinance. The Tribal Council shall meet in executive session when considering such information.
SECTION 11: NOTICE OF NON-TRIBAL PROCEEDING
A. The Siletz Family Advocate is designated as the person to receive notice of non-tribal agency proceedings involving custody of a Siletz child. The Family Advocate, upon receipt of such notice, immediately shall acknowledge receipt, verify the membership or eligibility for membership of the child, and request the following information:
(1) The name and address of the Siletz child who is the subject of the proceeding;
(2) The names and addresses of the child's parent or person through whose relationship the child is a member or is eligible for membership in the Confederated Tribes;
(3) The name and address of the person or organization who has physical custody of the child;
(4) The name and address of the person or organization who has legal custody of the child;
(5) Information relating to how the Siletz child came to the agency's attention;
(6) A description of what action the agency proposes to take concerning the Siletz child's custody and why the agency believes this action is necessary;
(7) A description of the remedial services and rehabilitative programs the agency has provided or is providing to keep the Siletz family intact and the results of those efforts; and
(8) The date, time and place for the non-tribal agency's consideration of the Siletz child's situation.
B. Notice of non-tribal agency proceedings involving a Siletz child immediately shall be forwarded to the Tribal Chairman.
SECTION 12: REVIEW OF CASE BY TRIBAL CHAIRMAN OR ICWA COMMITTEE
A. As soon as possible, and within five (5) days of receipt of the notice, the Family Advocate shall present a report and recommendation on the case to the Tribal Chairman and the Family Welfare Committee regarding what action the Tribe might take in the case. The Chairman immediately shall determine what action to take or, within three (3) days of receipt of the report from the Family Advocate, refer the case to the Committee for such determination.
B. Within ten (10) days of receiving the notice, the Family Advocate shall report to the non-tribal agency in writing of the decision of the Chairman or Committee regarding the following:
(1) Whether the child referred to in the notice is a Siletz child;
(2) Whether the Siletz Tribe will intervene in the proceeding;
(3) Whether the Siletz Tribe will request transfer of the proceeding from the non-tribal agency to the Siletz Family Court.
C. The Family Advocate immediately shall apply for enrollment of any Siletz parents and children involved in a non-tribal custody proceeding who are eligible for enrollment but are not enrolled as members of the Tribe.
SECTION 13: DECISION TO INTERVENE
In determining whether the Siletz Tribe should intervene in a non-tribal agency's child custody proceeding, the Tribal Chairman or Family Welfare. Committee shall consider the following factors:
A. Whether the proceeding will take place outside Oregon, whether funds are available to allow the Tribe to appear in the non-tribal agency's proceeding and whether a representative of another Indian tribe or Indian organization is able to intervene on behalf of the Siletz Tribe;
B. Whether the Siletz child, the child's parents or Indian custodian request that the Siletz Tribe not intervene in the proceeding; and
C. Whether tribal participation would be in the best interest of the child and the Tribe or transfer of the proceeding to the Siletz Family Court is necessary to protect those interests.
SECTION 14: INTERVENTION IN NON-TRIBAL PROCEEDINGS
A. Upon deciding to intervene in a non-tribal agency's child custody proceeding, the Siletz Family Advocate, shall do the following:
(1) Notify the parents and any other person known to have a custodial interest in the child that a proceeding which may affect their custodial rights is pending in a non-tribal agency and that the Siletz Tribe intends to intervene in the proceeding;
(2) If necessary, request from the non-tribal agency the opportunity to examine all reports or other documents concerning
(3) Request an additional 20 days to prepare for the proceeding; and
(4) Request that the tribal attorney prepare and file the necessary pleadings so that intervention is effected properly.
B. Upon the intervention of the Tribe in a non-tribal proceeding, responsibility for the legal aspects of the case shall be the tribal attorney's with advice and assistance from the Committee and the Family Advocate.
SECTION 15: SILETZ FAMILY COURT
The Siletz Family Court shall consist of five associate judges of the Tribal Court appointed by the Tribal Council with the advice and consent of the Chief Judge. The Council shall appoint one judge, with the advice and consent of the Chief Judge, who shall be the Chief Family Court Judge and will be responsible for the administrative operations of the Family Court.
SECTION 16: AUTHORITY OF SILETZ FAMILY COURT
The Siletz Family Court shall:
A. Adjudicate any matters concerning the custody of Siletz children within the Court's jurisdiction.
B. Adopt in writing any internal rules or operating policies it determines necessary to carry out the purposes of this ordinance.
SECTION 17: JURISDICTION OF SILETZ FAMILY COURT
The Siletz Family Court has jurisdiction over Siletz children and families who are before the Court due to any of the following:
A. A non-tribal court, upon request of the Tribal Chairman or Siletz Family Welfare Committee, transfers a proceeding involving the custody of a Siletz child to the Siletz Family Court;
B. A Siletz child, or the child's parents, legal custodian, Indian custodian or other family member or the Family Welfare Committee petitions the Family Court to initiate proceedings under this ordinance.
SECTION 18: GROUNDS FOR NOT EXERCISING JURISDICTION
The Siletz Family Court may decline to exercise jurisdiction over a child custody proceeding if it finds that it is in the Tribe's best interest to do so. Such circumstances may include, but are not limited to, the following:
A. The special needs of the Siletz child cannot be met by resources available to the Tribe;
B. The Siletz Family Court determines it to be in the best interests of the parties not to assert its jurisdiction in the case.
SECTION 19: DECISIONS OF THE COURT
Except as provided in Section 21, the Siletz Family Court shall arrive at decisions by majority vote of those present at any proceeding. At least three members must be present before a decision will be valid.
SECTION 20: COMMENCEMENT OF PROCEEDING
A child custody proceeding in the Siletz Family Court shall begin upon transfer of the case to the Court upon its request or upon presentation to the Chief Family Court Judge of a petition alleging that a Siletz child is a person in need of services. The petition may be signed by a member of the child's extended family, the child's legal custodian or Indian custodian or by a member of the Siletz Family Welfare Committee and shall include the following:
A. The name, age and address of the Siletz child who is the subject of the petition;
B. The specific provision of this Code under which the Siletz child is believed to be a person in need of services;
C. A statement describing the facts upon which the petition is based; and
D. A request for immediate Family Court services if necessary to prevent serious physical harm to the child.
SECTION 21: EMERGENCY PLACEMENTS
A. Upon receipt of a petition alleging that a Siletz child is a person in need of services, the Chief Family Court Judge immediately shall determine whether emergency services are required to prevent serious physical harm to the child. If probable cause exists to believe that the child needs emergency services, the Chief Family Court Judge may declare the child within the temporary legal custody of the Family Court. Thereafter, the Chief Family Court Judge may order the person who has physical custody of the child to place the child with a parent, extended-family member or Indian custodian. If no such person is able and willing to provide adequate supervision and care for the child, the Judge may order that the child be placed in a shelter or foster care facility approved by the Court.
B. No order of the Siletz Family Court under subsection A of this Section shall be valid for longer than five calendar days or the date of the hearing, under Section 20, whichever occurs first.
SECTION 22: HEARING
Within five (5) calendar days of a determination by the Chief Family Court Judge that a Siletz child is a person in need of emergency services, or within thirty (30) days of receipt of a petition alleging that a Siletz child is a person in need of services, the Family Court shall conduct a hearing to determine if cause exists to sustain the allegations.
SECTION 23: NOTICE REQUIRED
A. The Clerk of the Court shall be responsible to see that personal notice of the hearing and a copy of the petition shall be given to the Siletz child and the child's parent, legal custodian or Indian custodian, at least one (1) day prior to an emergency hearing or ten (10) days prior to any other hearing, by a person designated by the Chief Family Court Judge. The notice shall include the following:
(1) The name of the Siletz Family Court;
(2) The title of the proceeding;
(3) A brief statement of the basis on which the Siletz child is alleged to be a person in need of services;
(4) The date, time, and place of the hearing; and
(5) Statement that the Tribe, child, child's parent, legal custodian or Indian custodian has the right to be represented by an attorney or spokesperson at his or her own expense in the proceedings.
B. After reasonable efforts to provide personal notice have been unsuccessful, the Family Court may conduct the hearing without the presence of the Siletz child's parent parent(s), legal custodian or Indian custodian if such hearing is in the best interests of the child involved.
SECTION 24: CONDUCT OF HEARING
A. At the hearing, the person signing the petition or a person designated by the Chief Family Court Judge shall have the burden of showing that the child is a person in need of services.
B. All parties may introduce evidence, testify on their own behalf and examine witnesses. However, a party (parent, legal custodian or child) may not be compelled to testify.
C. At the conclusion of the hearing, the Family Court shall do the following:
(1) Dismiss the petition; or
(2) Find that the child is a person in need of services.
D. In all cases where the child is determined to be a person in need of services, the Court shall declare the child a ward of the Court subject to its continuing exclusive jurisdiction.
SECTION 25: BURDEN OF PROOF FOR TEMPORARY PLACEMENTS
The Court may determine that a temporary custodial change is necessary at any hearing where clear and convincing proof is presented showing that such change is necessary to protect the child from serious emotional or physical harm. The Court has no authority to terminate parental rights except as provided in Section 30 of this ordinance.
SECTION 26: PREPARING CHILD WELFARE PLAN
Following an initial determination that a child is in need of services, the Siletz Family Advocate shall develop a child welfare plan that describes the services believed necessary for the Siletz child and his or her family. The goal of any child welfare plan developed for a Siletz child shall be to keep the family intact or to reunite the family as soon as it is appropriate to do so. A Siletz child welfare plan shall include the following:
A. A statement of the objectives toward which the Siletz family will work with the help of the Family Court, the Family Advocate, other Siletz tribal programs and such other resources as are available from federal, state, local, or private agencies.
B. A schedule that the family will follow in utilizing available resources to help reach the objectives and the period of time not to exceed two years, that the plan will be in effect.
C. A statement of the alternative measures which the Court will take if the family fails to adhere to the plan.
SECTION 27: IMPLEMENTING CHILD WELFARE PLAN
A proposed child welfare plan shall be presented to the Siletz child, and the child's parent or Indian custodian at an informal meeting with the Family Advocate within 10 days of the order bringing the child within the legal custody of the Siletz Family Court. If no agreement is reached at the meeting, the Court may order the parties to follow a plan acceptable to the Court. Periodic review or hearings with the Siletz child and family shall be held upon order of the Court but at least once every six (6) months after an approved plan is adopted by the Court. Based on these reviews, the Court may amend any order concerning the child welfare plan to reflect changes in the child's or the family's needs or circumstances.
SECTION 28: PREFERENCES FOR PLACEMENTS
In placing a Siletz child in the custody of a family other than his or her own, the Family Court shall consider, in the order presented, the following placement preferences:
A. A member of the Siletz child's extended family;
B. A foster or adoptive home approved by the Siletz Family Welfare Committee;
C. A home suggested by the Siletz child or the child's parent which is acceptable to the Court;
D. An Indian foster home approved by another Indian tribe or licensed by an authorized non-Indian licensing authority;
E. An institution for children approved by an Indian, tribe or operated by an Indian organization which has a program suitable to meet the Siletz child's special needs.
SECTION 29: SUBSEQUENT HEARING.
A subsequent hearing may be held at the Court's discretion at any point in a proceeding over which the Court maintains jurisdiction provided the notice requirements of Section 23 are followed.
SECTION 30: VOLUNTARY PARENTAL RELINQUISHMENTS
A. Upon the petition of a parent who wishes to relinquish his or her custodial rights to a Siletz child, the Family Court may initiate a child custody proceeding under this Code.
B. If the Chief Family Court Judge concludes that the relinquishment is voluntarily and knowingly made by the parent and that the relinquishment will be in the best interests of the child, the Chief Judge shall, declare the child a person in need of services and within the legal custody of the Court.
C. No relinquishment under subsection (A) of this section shall be considered by the Court if it was executed by the parent before or within ten days of the birth of a child.
D. As an incident of its legal custody over a Siletz child under this Section, the Siletz Family Court shall assume all custodial interests of the parent who presented the petition, until such time as an appropriate permanent placement is made for the child and shall make all necessary arrangements for the temporary care of the child.
E. No relinquishment of a Siletz child under this Section by one parent shall affect the rights of the other parent of the Siletz child.
F. The placement preferences set forth in Section 28 shall be followed where appropriate in voluntary placements under this Section. The desires of the parent, however, shall be given weight in determining the best placement for the child.
SECTION 31: CLOSED PROCEEDINGS
Hearings before the Siletz Family Court shall be closed to all persons except parties to the proceeding, representatives of the Family Court and other persons whose presence is authorized by the Court.
SECTION 32: LOCATION OF HEARING
Hearings of the Siletz Family Court shall be convened in a location set by the Court but one that takes into consideration both the convenience of the Court and parties to the proceeding.
SECTION 33: SPECIAL ADVOCATE FOR CHILD'S INTERESTS
The Siletz Family Court may appoint a special advocate to represent a Siletz child's interests during a child custody proceeding. The court may determine such an appointment is necessary because of the child's incapacity to understand the nature and consequences of the proceeding, because of the parent's failure to appear, because the parent's interests may be adverse to the child's or because other circumstances require it.
SECTION 34: DISMISSAL OF PETITIONS FOR UNDUE DELAY
The Chief Family Court Judge shall dismiss any petition that has been pending before it without a hearing for longer than 60 days unless the delay has been approved by the Court.
SECTION 35: COURT RECORDS
All final orders and decisions of the Siletz Family Court shall be in writing and shall be furnished to each party in a child custody proceeding. In addition, the Court shall record all proceedings involving the custody of a Siletz child. Upon appropriate request and the payment of a reasonable fee, the Court shall transcribe its record and provide one copy to any party to the proceeding. Except as provided in this Code, all records and other materials presented to the Family Court shall be confidential and shall not be released outside the Court without approval in writing from the Family Court Judge.
SECTION 36: FULL FAITH AND CREDIT
The Siletz Family Court shall give full faith and credit to the public acts, records and judicial proceedings of any state, federal or other tribunal involving Siletz children to the same extent that these tribunals give full faith and credit to the public acts, records and judicial proceedings of the Siletz Tribe.
SECTION 37: WITHDRAWAL OF JUDGES, APPOINTMENT OF TEMPORARY JUDGES
Any judge may withdraw from a proceeding where the judge is unable for personal or other reasons to remain impartial.
SECTION 38: CONTEMPT OF COURT
Any person or agency that, without justification, discloses confidential information about a child custody proceeding involving a Siletz child or who willfully ignores or intentionally violates an order of the Siletz Family Court is subject to the Court's powers of contempt. If the contempt occurs in the Court's presence, the Court may impose sanctions immediately. If the contempt occurs outside the Count's presence, the Court shall conduct a hearing before imposing sanctions. In exercising its contempt powers, the Siletz Family Court may:
A. Refuse to allow the person or agency to appear in Siletz Family Court during the remainder of the proceeding in which the contempt occurs.
B. Refuse to allow the person or agency to appear in Siletz Family Court during future proceedings.
C. Eject the person or agency from the Court for such time as the Court believes necessary to restore order.
D. Take such other action as the Court believes necessary and appropriate to protect its authority and integrity.
E. Refer the matter to the General Manager for disciplinary action under the personnel policies of the Siletz Tribe when the contempt is committed by a tribal employee.
PART V - ADMINISTRATIVE MATTERS
SECTION 39: AGREEMENTS WITH OTHER GOVERNMENTS
The Siletz Tribal Council is authorized to negotiate with the State of Oregon, other states or the United States respecting the care and custody of Siletz children and jurisdiction over child custody proceedings. Such agreements may also provide for orderly transfer of jurisdiction on a case-by-case basis and for concurrent jurisdiction between the state and the Siletz Tribe. When ratified by the appropriate governing bodies, such agreements shall supersede this Code should a conflict exist.
SECTION 40: RELATIONS WITH NON-TRIBAL AGENCIES
Except as expressly provided herein, nothing in this Code is intended to limit or curtail the delivery of child welfare services to Siletz children and families by non-tribal agencies. In recognition of the shared responsibilities of the State of Oregon, the United States and the Siletz Tribe to serve tribal members, the Siletz Family Court and the Family Welfare Committee will take all necessary measures to encourage and promote cooperative working relationships with non-tribal child welfare resources.
SECTION 41: INVALIDATING ILLEGAL ACTIONS
The Siletz Tribal Council may petition a court of competent jurisdiction on behalf of the Confederated Tribes to invalidate any action for foster care placement or termination of parental rights under state law where such action is alleged to have violated the Indian Child Welfare Act.
STATEMENT OF REPEAL
The Siletz Tribal Council directs that Ordnance Number 84-02, entitled Indian Child Welfare Code, is hereby repealed.
CERTIFICATION
The forgoing ordinance was adopted by the Siletz Tribal Council at a Regular Council Meeting held on January 19, 1985 at which a quorum was present, and the ordinance was adopted by a vote of 8 FOR, 0 AGAINST and 0 ABSTAINING.
|
SILETZ TRIBAL COUNCIL By /s/ |
||
|
/s/ |
Child Welfare Code; Ordinance Number 85-01
Adopted January 19, 1984; Resolution Number 85-66