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Tuscarora Nation of New York
CHILD WELFARE LAW
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I. INTRODUCTION
Section 1, Preamble:
The Tuscarora Nation of New York recognizes that its future as a self-
Governing entity depends primarily on the youth of the NATION. To
protect these youths as an important resource and to assure The
Nation’s future forever, the Tuscarora Nation of New York legislate
that All children who are eligible for the Roll are “WARDS OF THE
COUNCIL and COURT” at birth, with shared legal custody with The
Tuscarora Nation of New York parent/s, and, acting through its Council
and Chiefs, adopts and establishes this Tuscarora Nation of New York
Child Welfare Law.
Section 2, Authority of the Tuscarora Nation of New York Government:
The Tuscarora Nation of New York Government is authorized by its
Constitution, acknowledgement by the Tuscarora Nation of New York as a
constituent band of the TUSCARORA NATION, and Constitutional
Amend-mints, which are supported by United States Federal Law 25
U.S.C… 229 et Seq. To legislate on matters of general concern and
to extend jurisdiction over its citizens whether on or off the
Reservation, to the Tuscarora Nation of New York and its Members. The
Right to legislate and protect the Nation’s family structure is
supported by UN Res. 260 A (III) of 9 Dec. 1948Art. 2. (B) thru (e);
And the UN Declaration of Rights of Persons Belonging to National or
Ethnic, Religious or Linguistic Minorities UNGAR 47/135, 18 Dec.1992
Et al. In addition, the Indian Child Welfare Act of 1978 (25 U.S.C.
1901 et Seq.) Affords the Tuscarora Nation of New York additional
Opportunities under Federal Law to participate in state court
Proceedings involving families and their children,
Acknowledges Indian authority over child welfare proceedings,
And provides Federal support for programs to serve Indian
Children and families.
Section 3, General policy:
It shall be the policy of the Tuscarora Nation of New York:
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(1) To protect the best interests of Tuscarora Nation of New York
children And the NATION, to prevent the breakup of Tuscarora Nation of
New York Families, and to promote the stability and security of the
Tuscarora Nation of New York by establishing standards for the
permanent Or temporary removal of Tuscarora Nation of New York children
from their Families.
(2) To Foster cooperative interwoven- mental relations between
The Tuscarora Nation of New York, other Indian Nations, the United
States, And between the Tuscarora Nation of New York and each of the
several states Of the Union in child welfare matters involving
Tuscarora Nation of New York Families and children.
(3) To make available to Tuscarora Nation of New York children and
families Child welfare services that respects the traditions and the
cultural Values of Tuscarora Nation of New York.
Section 4, Definitions:
As used in this ordinance:
(1) “Child custody proceeding” means any action by any agency that may
result in a Tuscarora Nation of New York child Being removed from his
parent or Indian custodian for temporary or Permanent placement in a
foster care, temporary shelter, or adoptive Home. The term does not
include a change of custody because of the Child’s criminal conduct or
because of an award of custody to a Parent in a divorce proceeding.
(2) “Custodial interest” means the right of a parent or other person
or agency to provide for the physical and emotional well being of a
Child. Except as voluntarily changed by consent of the parent or as
Expressly modified by order of a court of competent jurisdiction, a
Parents’ custodial interests in a child are shared with the
Council.
(3) “Extended family” includes any relative who has reached the age
Of 18 years and who is the Tuscarora Nation of New York child’s
grandparent, Aunt or uncle, brother or sister, brother-in-law or
sister-in-law, Niece or nephew, first or second cousin. The term also
includes any there person the Tuscarora Nation of New York court finds
to be a Tuscarora Nation of New York Child’s relative based on
traditional family or customs.
(4) “Indian Child Welfare Act”, (I.C.W.) means public law 95-608,
which is codified in Title 25 of the United States Code in Sections?
1901-1963.
(5) “Indian custodian” means any Indian person who has legal custody
Of a Tuscarora Nation of New York child under Tuscarora Nation of New
York Law, custom or under state law, or who has temporary physical
custody by permission of the parent of such child.
(6) “Legal custodian” means an agency or a person, including an
Indian custodian, who has custody of the child, but the term, 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
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the child with food, clothing, shelter, and other necessities such as
Education and routine health care. In emergency situations, a legal
Custodian may also consent to medical treatment, including surgery,
for the child.
(7) “Legal custody” means the status created by Tuscarora Nation of New
York law or custom or by order of a court of competent
Jurisdiction which vests a person or agency with a right to provide
For a child, subject to the rights, duties, and responsibilities of
The parent, guardian, or Indian custodian of the child. Under this
Ordinance, when the court finds a child within its exclusive
Legal custody, the child is also a ward of the court as that term is
used in the Indian Child Welfare Act, Child Welfare Law, and Part
I Sec 1.
(8) “No agency” means any branch, department, division, or
Office, and any official, officer, or employee of a federal, state,
Local or government other than Tuscarora Nation of New York.
(9) “Parent” means the natural parent or parents of a Tuscarora Nation
of New York child or any Indian person who has lawfully adopted a
Tuscarora Nation of New York Child. It does not mean the father of a
Tuscarora Nation of New York Child where paternity has not been
acknowledged or established.
(10) “Person in need of services” means an Tuscarora Nation of New York
Child or member whose situation warrants court Intervention Because:
(a) The child or parent has repeatedly disregarded or misused lawful
Parental authority;
(b) The child has repeatedly failed to attend school;
(c) The child has left home without approval;
(d) The child or parent uses alcohol or drugs to such an extent that
The abuse has impaired the person’s ability to satisfy basic personal
Or family responsibilities;
(e) Family separation prior to divorce;
(f) The child or parent is party to a child custody proceeding in
A non court; or
(g) The child has no parent, guardian, or legal custodian. The term
does not include a Tuscarora Nation of New York child or parent if the
only Basis for the allegation is that the child’s parent has placed the
Child with an Indian custodian.
(11) “Tuscarora Nation of New York child” means any unmarried person
who is under the age of 18 years and
(a) Is a member of Tuscarora Nation of New York,
(B) is eligible for membership in the Tuscarora Nation of New York, or
(c) Is a dependent of a Tuscarora Nation of New York member.
(12) “Tuscarora Nation of New York court” or “ Court” means the
judicial entity established or empowered by the Tuscarora Nation of New
York
Council and Chief, through this ordinance, to handle
Tuscarora Nation of New York Child welfare matters. In addition to the
Judge, who manages the court, and his staff, the Court
Includes the Tuscarora Nation of New York court of Appeals.
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COMMENTARY
this section defines the terms commonly used throughout the Child
Welfare Ordinance. Where a term in this law has a
Different meaning in common usage or in legal usage under the Indian
Child Welfare Act, that difference will be noted here.
(1) The term “custodial interference” is defined as any person,
Persons or agency, who without lawful authority of the NATION, given
In writing by the Tuscarora Nation of New York Chief,
Council or court, knowingly or recklessly takes or entices an
Tuscarora Nation of New York Child from the custody of his lay
Recognized parent, guardian, or other lawful custodian recognized by
The NATION. By so doing the said person commits the offense of
Custodial interference. Upon knowledge of such actions, the Tuscarora
Nation of New York shall invoke the provisions of the UN Res. 260 A
(III) Of 9 Dec. 1948Art. 2. (B) thru (e); and the UN Declaration of
Rights of Persons Belonging to National or Ethnic, Religious or
Linguistic Minorities UNGAR 47/135, 18 Dec.1992 et al and compel the
Federal Government to enforce the protections guaranteed by the
Treaty.
(2) The term “extended family” has a broader definition under
This Tuscarora Nation of New York ordinance than it does in the Indian
Child Welfare Act. For purposes of Tuscarora Nation of New York Law,
the Term includes members of the child’s extended family as defined by
The I.C.W. Act and other relatives defined by or family custom.
(3) The term “Foster Care” is defined as any artificially imposed
Care, temporarily provided, weather in a “certified foster home”
Or “emergency shelter,” as directed by a legal action to prevent
Injury to a Tuscarora Nation of New York Child by its parent/s.
(4) The terms “legal custodian” and “legal custody” are defined in
this ordinance to include the term “ward ship” as used in the Indian
Child Welfare Act. Although a parent’s authority over a child
includes all the rights and responsibilities of a legal
Custodian, “legal custody” refers only to the legal status created by
Law or Custom or by a court. By virtue of membership,
a child is deemed a Ward of the Council at birth by
Custom and law. In addition, a person who has only physical custody
over a child cannot be the child’s legal custodian. A change in the
Child legal custody supplements, but does not relieve, a parent’s
Responsibility to provide for the child’s well being, or the
Council’s authority to ensure proper care of said child.
(5) The term “no agency” is used in the ordinance to identify
any entity outside the Tuscarora Nation of New York which is
Interested or involved in a child custody proceeding affecting a
Tuscarora Nation of New York Child or Family. The term includes the
Children’s Services Divisions, Family Services Divisions, Juvenile
Courts and Juvenile Departments of any of the several states
Including local agencies of similar function known by other names,
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The Bureau of Indian affairs, the Indian Health Service, and
Other public or private agencies.
(6) The term “person in need of services” describes those Tuscarora
Nation of New York children or members over whom the Tuscarora Nation
of New York Court may exercise jurisdiction. The term encompasses the
Jurisdictional bases available to any of the various state juvenile
Courts to find a child within its authority. It also includes other
Grounds not specifically stated in state law as a basis for the
Intervention of the Tuscarora Nation of New York court. In addition,
the term recognizes that Tuscarora Nation of New York parents who place
their children in the homes of relatives have not abandoned or
neglected their children by that action alone.
Section 5, Recommended Qualifications of the Tuscarora Nation of New
York Judge:
Although this ordinance sets no formal standards to guide the
Tuscarora Nation of New York Chief or the Council in
Appointing a Judge, the council may wish to do so. In
Its report Indian Courts and the Future, 1978, the National American
Indian Court Judges Association makes the following recommendations:
1. Minimum qualifications shall be set by the NATION for the office of
judge, and he should be selected by a subdivision of the
government or elected by the NATION at large.
(a) Qualifications should reflect a preference for legal
Knowledge, an understanding of the code, experience in
Practice before the court, an understanding of Traditions and customs,
sufficient education to function effectively in the courtroom, and good
moral character.
(b) Other considerations which may be included in the selection of
Judges could include a minimum age, being a member, ability to
speak the language and residence on the reservation.
(c) Qualifications should be designed to minimize the influence of
Popularity or improper preferences in the selection of judicial
Officers.
PART II. NON CHILD CUSTODY PROCEEDINGS
Section 5, General Policy:
Except as provided in sections 6 through 13 of this ordinance, a
No agency shall neither change interests of an Tuscarora Nation of New
York parent or Indian custodian of an Tuscarora Nation of New York
Child, nor permanently, or temporarily remove any Tuscarora Nation of
New York Child from the home of his parents or Indian custodian.
COMMENTARY
This section requires any no agency that proposes to change
Custodial interests of a Tuscarora Nation of New York child to follow
the Ordinance’s requirements. These requirements include notices and
Opportunities to intervene in a case or to transfer the case to the
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Tuscarora Nation of New York court. Under the Indian Child Welfare
Act and This ordinance, the Tuscarora Nation of New York may seek to
invalidate any action taken in violation of the I.C.W. Act.
Section 6, Contents of Notice:
(1) A no agency shall notify the Tuscarora Nation of New York
Court or government on action which may affect the physical or legal
Custody of an Tuscarora Nation of New York child by furnishing a
written Notice that:
(a) Provides the name and address of the Tuscarora Nation of New York
child Who is the subject of the proposed change in custody?
(b) Provides the name and address of the child’s parent or other
Relative through whom the child is believed to be a Tuscarora Nation of
New York child.
(c) Provides the name and address of the person or organization that
has physical custody of the child.
(d) Provides the name and addresses of any persons or organizations
that have legal custody of the child?
(e) Describes how the Tuscarora Nation of New York child came to the
Agency’s attention.
(f) Describes what action the agency proposes to take concerning the
Tuscarora Nation of New York Child’s custody and why the agency
believes this action is necessary to avoid serious emotional or
physical
Damage to the child.
(g) Describes the alternative measures the agency has either taken or
considered to provide remedial services and rehabilitative programs
to keep the Tuscarora Nation of New York family intact and why these
Measures failed or were not carried out.
(h) Identifies the parties to the proceeding and the nature of their
Interests.
(I) Sets out the date, time, and place for the no agencies
Consideration of the Tuscarora Nation of New York child’s situation.
(2) A no agency shall take no action which might lead to the
Removal of an Tuscarora Nation of New York child from his or her home
until At l 10 days after the notice is received by the Tuscarora Nation
of New York government. Verbal notice to the court shall not
be given in lieu of the required written notice.
COMMENTARY
Written notice to an Indian NATION is required by the Indian Child
Welfare Act, and this section describes the basic information
required by the TUSCARORA NATION to enable it to follow
The Act’s mandates. In addition to this formal notice, a no
Agency may notify the Tuscarora Nation of New York court in person or
by telephone of any proceeding involving a Tuscarora Nation of New York
Child.
Section 7, Delivery of Notice:
(1) The notice required by section 6 of this ordinance shall be
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Marked “Confidential Child Welfare Information” and sent by
Registered mail with receipt requested to:
(2) Any notices received by the Chiefs or by any other
official, employee, or representative shall be immediately
Forwarded to the Tuscarora Nation of New York court.
COMMENTARY
this section designates the Chief as the Tuscarora Nation of New York
Official to receive notices regarding child custody proceedings.
This designation conforms to the procedure recommended to the state
Courts by the Bureau of Indian Affairs. Although formal notices will
be addressed to the Chief, the Tuscarora Nation of New York
Council is responsible for following up on the notice on behalf of
The Tuscarora Nation of New York.
Section 8, Review of Notice by the Tuscarora Nation of New York court:
(1) Upon receiving the notice required by section 6 of this
Ordinance, the Tuscarora Nation of New York court shall contact the
Appropriate enrollment official (Clerk) and shall verify that
The child referred to in the notice is an Tuscarora Nation of New York
child
After certification by the Chief.
(2) Within 10 days after receiving the notice, the court shall
Notify the no agency in writing that:
(a) The child referred to in the notice is not an Tuscarora Nation of
New York Child as defined in this code and the NATION has no interest
in The proceeding; or
(b) The TUSCARORA NATION will intervene in the proceeding
And requests 30 days from the date of receipt of the notice to
Prepare to do so.
(c) The TUSCARORA NATION requests transfer of the Proceeding from the
no agency to the Tuscarora Nation of New York court.
(3) The court shall immediately apply for the enrollment of
Any Tuscarora Nation of New York child who is eligible for enrollment
but Who is not an enrolled member of the TUSCARORA NATION
COMMENTARY
This section sets out the responsibilities placed on the
Court after notice of a child custody proceeding is received. The
Section requires that the court verify that the child who is
the subject of the notice is in fact a Tuscarora Nation of New York
child. Such verification can be made by contacting the Enrollment
Clerk. As provided in section 4, however, a “Tuscarora Nation of New
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York Child” includes a child who is eligible for enrollment, a child
who is already enrolled, and a child who is a dependent of a
Member. For this reason, it may be necessary to verify that the
Child’s natural parent as an enrolled member and to make a
Preliminary determination of the child’s eligibility for enrollment
Under the Tuscarora Nation of New York Constitution.
If the NATION requires transfer, subsequent proceedings will be
conducted pursuant to sections 14 through 45 of this code. The
Court is required to petition for transfer of the proceeding at this
Stage only where the interests of the child and the NATION clearly
require such action. Within 10 days after receiving the notice, the
Court must respond to the no agency. Unless the child
Is not an Tuscarora Nation of New York child, the response will inform
the Agency of the Nations intention to intervene in the proceeding and
Request a 30- day period to enable the NATION to participate, or it
Will request transfer of the proceeding to the Tuscarora Nation of New
York Court.
Section 9, Membership Determination by No Agencies:
(1) Except as provided in section 8 of this ordinance, no
Agency shall rely on the opinion of any agency or Official about the
actual or potential enrollment status of an Tuscarora Nation of New
York Child or family member.
(2) No employee or official shall disclose to any person other
Than the judge or his designated representative any
Information concerning the actual or potential enrollment status of
An Tuscarora Nation of New York child or family member involved in a
child
Custody proceeding.
COMMENTARY
This section limits the sources for the dissemination of information
Concerning an Tuscarora Nation of New York children enrollment or
eligibility
for enrollment. These limitations are necessary to assure that the
NATION itself can determine who its members are and can regulate how
Information about members is disseminated.
Section 10, Intervention in No Proceedings:
Upon deciding to intervene in a no agency’s child custody
Proceeding involving an Tuscarora Nation of New York child, the
Tuscarora Nation of New York court shall:
(1) Review the no agency’s notice to determine whether it
Complies with the minimum standards of this ordinance and the Indian
Child Welfare Act.
(2) 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 no agency and that the
Tuscarora Nation of New York intends to intervene in the proceeding.
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(3) Request from the no agency the opportunity to examine all
Reports or other documents concerning the Tuscarora Nation of New York
child
Presented for the agency’s consideration.
(4) Designate the representative of the Tuscarora Nation of New York
Court who will take charge of the proceeding on behalf of the
Tuscarora Nation of New York.
COMMENTARY
This section sets out the steps the Tuscarora Nation of New York
Court shall take in preparing to intervene in child custody
Proceeding. The court is required to evaluate the adequacy of the
No agencies notice, to notify interested parties of the
Proceeding and of the Nation’s intention to intervene, to examine al
Records and information available to the no agency concerning
The proceeding, and to designate a representative to
Participate in the proceeding on the Nation’s behalf.
The representative who intervenes will ordinarily be the
Nation’s Child Welfare Advocate, but another representative can be
designated by the court. At the designation of the
Chief, the attorney may also participate in the proceeding.
Section 11, Withdrawal from No Proceeding:
Following the review required in section 10, the Tuscarora Nation of
New York court shall appear on behalf of the Tuscarora Nation of New
York
NATION in a no agency’s child custody proceeding unless:
(1) The proceeding will take place outside of Florida, Georgia or
South Carolina, insufficient funds are available to the Tuscarora
Nation of New York court to appear in the no agencies
Proceeding, and no other representative of the Tuscarora Nation of New
York
NATION or of another Indian NATION or organization is able to intervene
On behalf of the THE TUSCARORA NATION; or:
(2) The Tuscarora Nation of New York child, or the child’s parents, or
Indian Custodian request that the THE TUSCARORA NATION not
Intervene in the proceeding, and the court believes that the
participation would not be in the best interest of the child
And the NATION.
(3) Transfer of the proceeding to the Tuscarora Nation of New York
Court is necessary to protect the interests of the Tuscarora Nation of
New York
COMMENTARY
This section permits the court to rescind the preliminary
Decision to intervene in a no agency’s proceeding if the
Hearing will take place outside of the THE TUSCARORA Nation’s
Sphere of influence and
Insufficient funds are available to permit Tuscarora Nation of New York
participation. Before withdrawing on this basis, however, the
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Court should determine whether another representative could
participate on the Tuscarora Nation of New York ’s behalf.
This section also permits the court to withdraw from a
Proceeding upon request of the Tuscarora Nation of New York child and
the
Child’s parents or other custodian if the best interests of the child
And the NATION would be served by doing so.
Section 12, Decision to Request Transfer:
Although a transfer to the Tuscarora Nation of New York court may be
Requested upon receipt of the notice as provided in section 8, or
After the preliminary review required in section 10, this section
Expresses the belief that such requests should be limited to those
Cases where the court finds that the transfer is necessary to
Protect the interests of the child and the Tuscarora Nation of New York
NATION.
Section 13, Purpose of Intervention:
In any proceeding before a no agency which may affect the
Custody of an Tuscarora Nation of New York child, the Tuscarora Nation
of New York Court shall seek to further the objectives of the TUSCARORA
NATION as expressed in this ordinance and in the Indian Child Welfare
Act. The Tuscarora Nation of New York court shall furnish the agency
with this ordinance and with other evidence of the Nation’s interest in
keeping Tuscarora Nation of New York families intact. Such evidence may
include testimony from members and other qualified persons about
traditional child- rearing practices within The Tuscarora Nation of New
York, the long-term effects of no Placements on Indian children, and
other information the Court Believes necessary to represent interests
in the proceeding.
Section 14, Emergency Placements:
Not withstanding Section 5 of this code, a no agency any place
a Tuscarora Nation of New York child in a foster home or emergency
shelter Care facility when such action is necessary to prevent immanent
Physical damage or harm to the child. Within three days of an
Emergency placement, a no agency shall notify the Tuscarora Nation of
New York as provided in Section 6 of this ordinance.
COMMENTARY
This section recognizes that a no agency may make an
Emergency placement of a child to prevent physical injury
to the child without prior notice to the NATION. However, under the
Indian Child Welfare Act, such a placement can continue no longer
than the emergency itself unless a child custody proceeding subject
To the Act is initiated. This section implements that federal
Requirement by requiring notice to the Tuscarora Nation of New York
Within three days of the emergency placement. After the emergency
Placement. Subsequent actions are subject to the provisions of this
Ordinance.
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Under Section 53, the Tuscarora Nation of New York may petition a
Court to overturn any action, which violates the Indian Child Welfare
Act. In addition, the court may initiate a proceeding
under subsection (4) of Section 21 to find a child a Person
In Need of Services or Ward of the court. A court
Determination has the legal effect of preventing further state court
Involvement in the proceeding, because the Indian Child Welfare Act
Divests a state court of all authority over a child who is a ward of
The court.
Part III. Child Custody Proceedings
Section 15, Tuscarora Nation of New York court:
(1) The Tuscarora Nation of New York court is empowered, authorized
and established by the Council and Chief.
(2) The court shall include the Judge and such
Professional and support staff as the Council and
Chief determines necessary for the Court to carry out its
Responsibilities under this ordinance. The Tuscarora Nation of New York
Chief shall appoint the Judge with the approval of
The Council. The Judge shall be responsible for the judicial
and administrative operations of the court, including
Supervision of the Court staff.
Section 16, Term of Office:
(1) the term of office of the Tuscarora Nation of New York Judge
Shall is two years. A Judge who has faithfully performed his duties
shall be given first consideration for re-appointment to another term.
(2) A chief Judge shall be chosen from the Judges by the
Chief and shall act as Chief Appellate Judge and Executive
Administrator for the court. The term of office of the Chief
Judge of the Tuscarora Nation of New York court shall be the
Remainder of his term in office as Judge (up to two years).
Section 17, Vacancies:
In the event of the death, resignation, or removal from
Office of the Tuscarora Nation of New York Judge, the Chief
Shall appoint another judge to serve the remainder of the unexpired
Term.
Section 18, Removal from Office:
The Tuscarora Nation of New York Judge may be removed from office for
Cause after a hearing before the Council with the approval a
Two-thirds majority of the council members.
Section 19, Authority of the Tuscarora Nation of New York court:
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In exercising its authority over child welfare matters, the Tuscarora
Nation of New York court shall:
(1) Adjudicate any matters concerning the custody of Tuscarora Nation
of New York children within the Court’s jurisdiction.
(2) Serve as the agency of the Tuscarora Nation of New York
For coordinating child welfare services.
(3) Represent the Tuscarora Nation of New York in child custody
Proceedings before no agencies.
(4) Approve as foster care families and shelter care facilities those
Applicants who meet the Nation’s criteria for approval.
(5) Adopt in writing any internal rules or operating policies it
determines necessary to carry out the purposes of this code.
(6) Perform such other duties as are assigned to it by
Law or by direction of the Council or Chief.
Section 20, Responsibilities of a court Judge:
The Tuscarora Nation of New York court Judge shall manage the
administrative and judicial operations of the court. In
Carrying out these responsibilities, the Judge shall:
(1) assign a representative of the Court to intervene on behalf of
The THE TUSCARORA NATION in child custody proceedings in
No courts.
(2) Oversee the activities of the court and supervise its
Staff.
(3) Assist other Tuscarora Nation of New York programs and no
Programs in matters affecting children and families.
(4) Advise the Council of the needs of Tuscarora Nation of New York
Families and children for child welfare services and advocate for the
Provisions of such services through, state, federal, and
private resources.
(5) Conduct his private and business affairs outside of his
official capacity as Judge in a way that is above rebuke,
avoids conflict of interests with the duties of his office and
leaves time to adequately perform his duties as Judge.
Section, 21 Jurisdiction of the Tuscarora Nation of New York court:
The Tuscarora Nation of New York court has jurisdiction over
Tuscarora Nation of New York children and families who are in need of
services when:]
(1) A non court transfers a child custody proceeding involving
an Tuscarora Nation of New York child to the Tuscarora Nation of New
York
Court.
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(2) An Tuscarora Nation of New York child, the child’s parents,
guardian, or
Indian custodian or any other person petitions the court to
initiate proceedings under this ordinance.
(3) The United States or any of the several states of the Union by
legislative or administrative action vests the Tuscarora Nation of New
York
with additional authority to adjudicate child custody
proceedings involving Tuscarora Nation of New York children.
(4) The Tuscarora Nation of New York court on its own motion
initiates a proceeding under this Ordinance because other resources
are either not available or not appropriate
(5) By any other means it becomes known to the Tuscarora Nation of New
York Council, Chief, or court that a proceeding is
commencing or going to commence in a non forum that will affect
the custody, best interests or welfare of an Tuscarora Nation of New
York child, and/or NATION.
COMMENTARY
This section describes the types of situations over which the
Tuscarora Nation of New York court may exercise its jurisdiction. At
present, the Tuscarora Nation of New York ’s relationship to the United
States Government is subject to the UN Res. 260 A (III) of 9 Dec.
1948Art. 2. (B) thru (e); and the UN Declaration of Rights of
Persons Belonging to National or Ethnic, Religious or Linguistic
Minorities UNGAR 47/135, 18 Dec.1992 et al. Changes in this
relationship if they are to occur, will be considered by the
Tuscarora Nation of New York Council and Chief. 25
U.S.C… so 229 ET. Seq. provides for the complete jurisdiction over
Members, within the reservation, separate States, and Trust
Territories of the United States. Also, at the discretion of the
Council and Chief the Tuscarora Nation of New York may
execute intergovernmental agreements concerning child welfare
jurisdiction or services.
Section 22, Grounds for Not Exercising Jurisdiction:
The Tuscarora Nation of New York court shall be mindful of the
interests of the NATION as a whole in an Tuscarora Nation of New York
child
but shall also keep in mind the best interests of an Tuscarora Nation
of New York child when considering jurisdictional issues. The Tuscarora
Nation of New York Nation court is the preferred forum of the NATION
for resolving child welfare and custody problems. However, the
Court may decline to exercise jurisdiction over a child custody or
welfare proceeding if it finds that it is in the Tuscarora Nation of
New York interest to do so and that:
(1) The special needs of the Tuscarora Nation of New York child cannot
be met in court (Note the above does not preclude the reopening of
proceedings by the Tuscarora Nation of New York court at a future date
when such need of the child have been determined by the
XIV
Court to have sufficiently passed); or
(2) The Tuscarora Nation of New York child and family involved in the
proceeding have not had sufficient contact with the Tuscarora Nation of
New York and its members to mandate the exercise of
Jurisdiction; and(3) The Tuscarora Nation of New York child or the
child’s parents or legal guardian object to the exercise of
jurisdiction by the Tuscarora Nation of New York court; and
(4) No other persons of the Tuscarora Nation of New York , its
Council, Chief or court have objections to the
referral of jurisdiction to another forum.
(6) If objections are raised by persons of the Tuscarora Nation of New
York but not of the Council or Chief the matter will be
resolved by the court which shall consider the relationship or
other interest of the petitioner to the child
.
(7) The referral of jurisdiction to a forum other than the Tuscarora
Nation of New York court shall not preclude the resumption of such
jurisdiction at a later date at the discretion of the Tuscarora Nation
of New York court.
Section 23, Best Interests of Tuscarora Nation of New York Children and
NATION:
(1) The People of the Tuscarora Nation of New York assert and declare
by Custom and Law that it is in the best interest of Tuscarora Nation
of New York children, Tuscarora Nation of New York families, and the
NATION itself for Tuscarora Nation of New York children to be raised by
their parents. In the event that the parents are unable or unwilling to
provide the basic care and support the child requires, the Tuscarora
Nation of New York maintains that it is in the best interest of the
Tuscarora Nation of New York child to be cared for by the Tuscarora
Nation of New York as a Ward of the Tuscarora Nation of New York court.
In order to care for Tuscarora Nation of New York children and protect
their best interests the Tuscarora Nation of New York court has
established the Tuscarora Nation of New York Family and Children’s
Services Department.The court shall approve Tuscarora Nation of New
York and otherfamilies that are able and willing to adequately raise
Tuscarora Nation of New York children in accordance to Custom and Law
and such rules and policies that are adopted by the court and The
Tuscarora Nation of New York Family and Children’s Services Department.
(See Tuscarora Nation of New York Foster Parent and Training Handbook).
(2) In the event that a competing jurisdictional claim is made or
where there is a multi jurisdictional child custody question, the
Council, who is empowered to share Legal Custody of
TUSCARORA Nation Children from birth to age of majority, shall deem it
in the best interest of the NATION that the court shall exercise
complete and exclusive jurisdiction. Only upon a vote of 2/3 of the
Council, will the Court be empowered to decline its exercise of
jurisdiction to another non- forum.
(3) In the event of Custodial Interference, by a person, persons or
agency, not legally empowered to assume custody as provided by
Tuscarora Nation of New York Custom or Law, or, when it can be
XV
demonstrated that the person or agency would seek to remove the child
from the jurisdiction of the NATION, the state of Florida, or the
United States, it shall be considered in the best interest of the
NATION to maintain complete and exclusive jurisdiction, as provided
for in Law, and as supported by the Indian Child Welfare Act.
Further, the UNR; that enforcement of Laws shall be maintained
by the Federal Government with appropriate provisions of Federal
Law.
Section 24, Commencement of Child Welfare Proceeding:
A child custody proceeding in the Tuscarora Nation of New York court
shall begin upon presentation to the Judge of a petition alleging that
an Tuscarora Nation of New York child is a Person in Need of Services.
The petition shall be signed by a representative of the Court or by an
Tuscarora Nation of New York Member and Shall include:
(1) The specific provision of this code under which the Tuscarora
Nation of New York child is believed to be a Person in Need of
Services.
(2) The name, age, and address of the Tuscarora Nation of New York
child
who is the subject of the petition.
(3) A statement describing the facts upon which the petition is based.
(4) A request for immediate court services if necessary to
prevent serious physical harm to the child.
Section 25, Emergency Placements:
(1) Upon receipt of a petition alleging that an Tuscarora Nation of New
York child is a person in need of assistance, the court Judge
shall determine whether emergency services are required to prevent
serious physical or emotional harm to the child. If there is a
probable cause to believe that the child requires emergency services,
the Judge may declare the child within the temporary legal custody of
the court. There after, the 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.
(2) No order of the Tuscarora Nation of New York court under
subsection (1) of this section shall be valid for longer than 30
calendar days or the date of the preliminary hearing, whichever
occurs first.
Section 26, Preliminary Hearing:
Within five working days of the time the court Judge receives
a petition alleging that an Tuscarora Nation of New York child is a
person in need of services, the Judge shall conduct a preliminary
hearing to determine if probable cause exists to believe that the child
is a
XVI
person in need of services.
Section 27, Notice Required for Preliminary Hearing:
(1) Personal notice of the preliminary haring shall be given to the
Tuscarora Nation of New York child and to the child’s parent or Indian
custodian by a person designated by the court. The notice
shall include:
(a) The name of the Tuscarora Nation of New York court;
(b) The title of the Proceeding;
(c) A brief statement of the basis on which the Tuscarora Nation of New
York child is alleged to be a person in need of services; and
(d) The date, time and place of the hearing.
(2) After reasonable efforts to provide personal notice have been
unsuccessful, the court may proceed with the preliminary
hearing without the presence of the Tuscarora Nation of New York
child’sparent or Indian custodian.
Section 28, Conduct of Preliminary Hearing:
(1) At the preliminary hearing, the court shall inform the
Tuscarora Nation of New York child and the child’s parent or Indian
custodian of their right to retain an attorney, legal representative
or authorized representative (spokesman) to represent their
interests. In the case of multinational child custody proceedings,
if the parent/s have no legal status, or rights of habitation, then
representation of the parent/s can be made only by members or staff
of the appropriate Consulate. If the parties request an opportunity
to obtain representation, the judge shall postpone the proceeding for
a reasonable period of time.
(2) All parties may introduce evidence, testify on their own
behalf, examine and cross-examine witnesses. However, no party shall
be required to be a witness against himself.
(3) At the conclusion of the preliminary hearing, the
Court shall:
(a) Dismiss the petition; or
(b) Find that there is probable cause to believe that the child
is a person in need of services.
(4) If probable cause is established, the court Judge shall
issue an order setting the date, time, and place for a hearing on the
petition. This hearing shall be held within 30 days of the
preliminary hearing unless the Judge finds that the interests of the
Tuscarora Nation of New York child and of the NATION require
postponement of
the hearing.
Section 29, Issuing Summons:
(1) At l five days before the hearing on the petition, the
Tuscarora Nation of New York court Judge shall issue summons to the
Tuscarora Nation of New York child, the child’s parent of Indian
XVII
custodian,
and any other person whose presence the Court believes is necessary
for the hearing.
(2) The summons shall contain the name of the Tuscarora Nation of New
York Court, the title of the proceeding, and the date, time, and place
ofthe hearing. A copy of the petition shall be attached to the summons.
(3) Each summons shall be signed by the Judge and shall be
delivered in person or by registered mail. If a person who receives a
summons fails to appear at the hearing, that person may be found in
contempt of the Tuscarora Nation of New York court as provided in
section 47 of this code.
Section 30, Conduct of Hearing:
(1) At the hearing on the petition, all parties shall be entitled to
the same rights and privileges accorded parties during the
preliminary hearing in the court. At the conclusion of the
hearing, the judge shall:
(a) Dismiss the petition; or
(b) Sustain the petition by finding that the allegations in the
petition are supported by substantial proof.
(2) Except as provided in subsection (3) of this section, if
the petition is sustained, the court judge shall order that
the child is a person in need of services and shall declare the child
within the legal custody of the Tuscarora Nation of New York court.
(3) If the court judge is convinced by clear and convincing
proof at the hearing, including the testimony of impartial and
qualified expert witnesses, that a custodial change is necessary to
protect the child from serious emotional or physical harm, the judge
shall order that the child is a person in need of services, shall
declare the child within the legal and physical custody of the
Tuscarora Nation of New York court, and shall make an appropriate
placement of the child pursuant to section 34 of this ordinance.
COMMENTARY
A finding that a child is a person in need of services enables the
Court to work with the child and family to overcome the
problems, which brought the child before the Court. Such a finding
does not entitle the Court to order a child’s removal from his home
unless the requirements of subsection (3) are met. Similarly, the
decision to declare a child within the court’s legal custody does not
change the custodial interests of a party to the proceeding. It only
provides the legal basis for the Court to mandate needed services for
the child and family.
Although a change in physical custody will not normally be ordered at
this stage, subsection (3) permits the Court to order that a child be
removed from his home if necessary. Ordinarily, such action requires
a separate hearing under the provisions of section 33.
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Section 31, Preparing a Child Welfare Plan:
For any child who is under the legal custody of the Tuscarora Nation of
New York court, a representative of the court shall develop
a child Welfare plan that describes the services believed necessary
for the Tuscarora Nation of New York child and family. The goal of any
child welfare plan developed for a Tuscarora Nation of New York child
shall be to keep the family intact. An Tuscarora Nation of New York
child welfare plan shall include:
(1) A statement of the objectives toward which the Tuscarora Nation of
New York family will work with the help of the court, other
Tuscarora Nation of New York programs, and such other resources as
are available from federal, state and local private agencies.
(2) A schedule of the activities and services that the Tuscarora Nation
of New York family will follow to help reach the prescribed
objectives and the period of time, not to exec two years, that the
plan will be in effect.
(3) A statement of the alternative measures which the Court will
take if the family fails to adhere to the plan.
COMMENTARY
this section directs that the court develop a child welfare
plan for every child found to be a person in need of services. Such a
plan will describe the services to the child and the activities for
the child and family that the Court believes will enable the family
to avoid future involvement with the Court. Ordinarily, the plan will
be developed by court Staff and incorporated into a continuing
order of the court.
Section 32, Implementing the Child Welfare Plan:
A proposed child welfare plan shall be presented to the Tuscarora
Nation of New York child, and the child’s parent of Indian custodian at
an informal meeting within 30 days of the order bringing the child
within the legal custody of the Tuscarora Nation of New York court.
If the parties agree to the plan, it shall be presented to the
Court for formal approval. If no agreement is reached, the Judge may
order the parties to follow a plan acceptable to the Court. Periodic
reviews with the Tuscarora Nation of New York child and family shall be
held upon order of the judge but at l once every 90 days after an
approved plan is adopted. Based on these reviews, the court
judge may amend any court order concerning the plan to reflect
changes in the child’s or the family’s needs of circumstances.
Section 33, Removing a Child From Home:
(1) Except as provided in Section 25 of this ordinance, a separate
hearing must be held by the court whenever it receives a petition
alleging that a child who is within the legal custody of the Court is
likely to suffer serious emotional or physical damage and that a change
in the child’s custody is necessary to avoid such injury to the child.
At the conclusion of the hearing, the judge shall:
XIX
(a) Dismiss the petition; or
(b) Find that the allegations in the petition are sustained by clear
and convincing evidence, including the testimony of impartial and
qualified expert witnesses, and that active remedial efforts to
enable the child to remain at home have been unsuccessful. The judge
may then order an appropriate placement of the child pursuant to
section 34 of this code.
COMMENTARY
In emergency placements under section 25, the child’s physical health
must be in danger to justify a custodial change. Under this section,
the child’s emotional and physical well being may be taken into
consideration. The standard of proof required for removing a child
from home is higher than that required for finding the child to be a
person in need of services, and the evidence must include the
testimony of unbiased and expert witnesses such as psychiatrists,
physicians and/or clinical social workers.
Section 34, Preferences for Temporary Placements:
After the hearing required by section 33 or by subsection (3) of
section 30 and in placing an Tuscarora Nation of New York child in the
custody of a family other than his own, the court judge shall
apply the following preferences:
(1) A home suggested by the Tuscarora Nation of New York child or the
child’s parents and found to be acceptable to the Court;
(2) A member of the Tuscarora Nation of New York child’s extended
family;
(3) A foster home approved by the Tuscarora Nation of New York court;
(4) An Indian foster home approved by another Indian NATION or
licensed by an authorized non-Indian licensing authority;
(5) An institution for children approved by an Indian NATION or
operated by an Indian organization which has a program suitable to
meet the Tuscarora Nation of New York child’s special needs.
COMMENTARY
These preferences must be applied by the court and by
non-agencies in making an out of home placement of a Tuscarora Nation
of New York child. The order of placement set out in the Indian Child
Welfare Act is altered by this section because of the Tuscarora Nation
of New York interest in allowing a child and the child’s
parents to express opinions about an appropriate home. In evaluating
these opinions, the Court should consider the child’s age, maturity,
and ability to express his feelings freely as well as the parent’s
interest in the placement.
Section 35, Voluntary Parental Relinquishments:
XX
(1) No order of the Tuscarora Nation of New York court shall
terminate all legal relationships between a parent and an Tuscarora
Nation of New York child, unless, however, upon a review of the facts
it is
determined that the parent has abandoned said child, through act and
deed, or a petition of a parent who wishes to relinquish his
custodial rights to an Tuscarora Nation of New York child, the court
may initiate a child custody proceeding under this ordinance.
(2) If the court concludes that the petition was
voluntarily and knowingly made by the parent and that the evidence
establishes beyond a reasonable doubt that relinquishment will be in
the best interest of the child, the judge may order that the child is
a person in need of services and declare the child within the legal
custody of the court as a ward of the court.
(3) No petition under subsection (1) of this section shall be
considered by the Court if the parent executed it before or
within 10 days of the birth of the Tuscarora Nation of New York child.
(4) As an incident of its legal custody over an Tuscarora Nation of New
York
child under this section, the Tuscarora Nation of New York 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, so that it can make all necessary arrangements
for temporary care of the child.
(5) No relinquishment of a Tuscarora Nation of New York child under
this section by one parent shall affect the rights of the other
parent of the Tuscarora Nation of New York child.
(6) In the case of voluntary or involuntary relinquishment of
parental rights, visitation of said child/ran shall remain in effect
through supervision of visitation by the Children Services
Division, unless it has been determined that in the best interest of
the child/ran visitation by such parent is detrimental to the well
being of the child/ren.
COMMENTARY
Although the Tuscarora Nation of New York recognizes that certain
families cannot adequately provide for themselves and that
alternative living arrangements may be necessary for some children,
the NATION believes that it is never appropriate to completely sever
the legal connections between a parent and a child. However, this
section does authorize the court to accept a parent’s
voluntary relinquishment of a Tuscarora Nation of New York child for
adoption.
Section 36, Preferences for permanent Placements:
In selecting a permanent placement for an Tuscarora Nation of New York
XXI
child
under section 35 of this ordinance, the court shall give
preference to placing the child with:
(1) A person chosen by the Tuscarora Nation of New York child or the
child’s parent and acceptable to the court;
(2) A member of the child’s extended family;
(3) Other members of the TUSCARORA NATION;
(4) Other Indian families.
COMMENTARY
these preferences must also be applied by non-agencies in
making adoptive placements of a Tuscarora Nation of New York child. The
order of placement set out in the Indian Child Welfare Act is altered
by this section because of the Tuscarora Nation of New York ’s interest
in allowing a child and the child’s parent to express opinions about
an appropriate home. In evaluating these opinions, the Court should
take into account the child’s age, maturity, and ability to express
his feelings freely as well as the parent’s interest in the placement.
Section 37, Public Access to Tuscarora Nation of New York Court
Proceedings:
Hearings before the Tuscarora Nation of New York court shall be
closed to all persons except parties to the proceeding, the parties
authorized representatives or legal representatives, representatives
of the court and other persons whose presence is authorized by
the Court.
Section 38, Location of the Hearing:
Hearings before the Tuscarora Nation of New York court shall be held
in or near the Tuscarora Nation of New York Indian Reservation unless
the Court finds that a hearing in another location would be preferable
for the convenience of the Court and of the parties to the proceeding.
Section 39, Special Advocate for the Child’s Interests:
The Tuscarora Nation of New York Court shall appoint a special advocate
to represent an Tuscarora Nation of New York child’s interests during a
child custody proceeding whenever the Court determines 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 there circumstances require such
advocacy onbehalf of the child.
Section 40, Dismissal of petition For Undue Delay:
The Tuscarora Nation of New York court shall dismiss any petition
that has been pending before it without a hearing for longer than
XXII
calendar 60 days unless the delay has been approved by the Court upon
request of the child or the child’s parent’s
COMMENTARY
This requirement is based on the belief that the court’s value
to an Tuscarora Nation of New York child and family is in being able to
provide needed assistance quickly and that this benefit is lost after
a time. Nothing in this section prevents the Court from considering
another petition concerning the same Tuscarora Nation of New York
Child.
Section 41, Court Records:
All final orders and decisions of the Tuscarora Nation of New York
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 Tuscarora Nation of New York
child.Upon request, the Court shall transcribe its record of a child
custody proceeding and shall provide one copy to the person seeking
appeal at a reasonable cost, which shall be set by court
policy. Except as provided in this code, all records and other
materials presented to the court shall be confidential and
shall not be released outside the court without approval in writing
from the court Judge.
Section 42, Appeal to the Tuscarora Nation of New York Court of
Appeals:
Any party of the original case that is not satisfied by a final order
or decision of the Tuscarora Nation of New York court may appeal to
the Tuscarora Nation of New York Court of Appeals. The Court of Appeals
shall consist of three judges appointed by the Chief to
hear the Appeal.
Section 43, Notice of Appeal:
Notice of appeal must be furnished in writing to the Tuscarora Nation
of New York
Court within 30 days of the time the final order or
decision is issued by the court Judge. The
Court, at l 10 days before the hearing, shall give notice of the
appeal to all parties in the original proceeding by registered mail
or by personal delivery. Within 60 days of the receipt of the Notice
of Appeal and under such rules as it adopts in writing, the Court of
Appeals shall hear the appeal and decide whether the decision of the
Court should be affirmed, modified or reversed.
Section 44, Grounds for Appeal:
The Tuscarora Nation of New York Court of Appeals shall affirm all
XXIII
decisions
of the Tuscarora Nation of New York court unless at l two of its
members agree that the Court’s decision violates this ordinance, the
Tuscarora Nation of New York Constitution of 1827, or the Indian Civil
Rights Act. Final approval of any action is upon the Chief
of the Tuscarora Nation of New York.
Section 45, Effect of the Appeal:
The pendency of any appeal shall not delay the Tuscarora Nation of New
York Court in carrying out its decision unless a majority of the
Court of appeals believes such a delay is necessary to protect the
Tuscarora Nation of New York child or to protect significant
interests in the matter. If such protection is needed, the Court of
Appeals shall order a temporary stay of the Court Decision.
The Court of Appeals shall provide copies of its written decisions
and orders to the court judge and to all parties in the
appellate proceeding.
PART IV. ADMINISTRATIVE MATTERS
Section 46, Disqualification of Judges, Appointment of Temporary
Judges:
(1) No judge of the Tuscarora Nation of New York Court, including
a judge of the Court of Appeals, shall preside over any matter where
he, or a member of his family, is an interested party. Any Judge may
withdraw from a proceeding where the judge is unable for personal or
other reasons to remain impartial.
(2) Whenever a judge of the Tuscarora Nation of New York court or
the Court of Appeals is unable to serve, the Tuscarora Nation of New
York
Chief shall appoint a temporary replacement.
Section 47, Contempt of Court:
Any person or agency who without justification discloses
confidential information about a child custody proceeding involving
an Tuscarora Nation of New York child or who willfully ignores or
intentionally violates an order of the Tuscarora Nation of New York
Court is subject to the Court’s powers of contempt. If the contempt
occurs in the Court’s presence, the Court may take action immediately
to protect its integrity. If the contempt occurs outside the Court’s
presence, the Court shall conduct a fact-finding hearing before
taking action to protect itself. In exercising its powers to take
action against someone found to be in contempt the Tuscarora Nation of
New York Court may:
(1) Refuse to allow the person or agency to appear in court
during the remainder of the proceeding in which the contempt occurs.
(2) Refuse to allow the person or agency to appear in court
during Future proceedings.
(3) Eject the person or agency representative from the courtroom for
such time as the Court believes necessary to restore order.
XXIV
(4) Take such other action as the Court believes necessary and
appropriate to protect its authority and integrity.
(5) Refer the matter to the Tuscarora Nation of New York
Chief for disciplinary action under the personnel policies of the
Tuscarora Nation of New York when the contempt is committed by an
employee.
Section 48, Approval of Foster Care Homes:
A representative of the Tuscarora Nation of New York Court shall
approve as a foster care resource the home of any Tuscarora Nation of
New York family which meets the minimum standards for foster care homes
adopted by the Tuscarora Nation of New York Council. Each approved
home shall be re-evaluated at l annually to verify that it
continues to meet standards.
Section 49, Assistance to Non Agencies:
The Tuscarora Nation of New York Court shall assist any non
agency that requests its help in placing an Tuscarora Nation of New
York child in foster care. Such assistance may include interviewing
potential placement families and other activities the court
believes will further interest in the placement. Under no
circumstances shall the Court furnish a non-agency or person
with a list of possible referrals or with a list of Tuscarora Nation of
New York families from which the agency or person can select a
placement without involving the court.
Section 50, Issues of Paternity:
The Tuscarora Nation of New York court shall recognize the Paternity
of a child alleged to be fathered by a member ONLY if the
alleged father has been proven to be such through a genetic testing
procedure (DNA) and there is reasonable assurance that the father is
of a genetic type matching that of the child. A blood test shall be
deemed insufficient evidence to prove paternity, and as such, the
child shall not be considered as eligible for Citizenship,
nor eligible for any annuities or benefits if only a blood
test was utilized to determine paternity. It is the responsibility
of a petitioner to demonstrate paternity through methods accepted by
the Council, either through a State Court, or the
Court. Once paternity has been successfully demonstrated to be that
of a Member, the child is thereafter considered to be a full
member of the NATION with all rights of inheritance, and is considered
to be a WARD OF THE COUNCIL and COURT according to Section 1
of the Tuscarora Nation of New York Child Welfare Law.
The non- parent must accept the jurisdiction of the NATION as
superior to all other jurisdictions in the matter of Child Welfare
and Legal Custody, or submit a statement to the court of her
desire to waive all Rights of the child until such time as
the child reaches the age of majority, or upon transfer of full
custody of the child to the father, and a petition is presented to
the Council for the full recognition of the child as a
Citizen.
XXV
In all matters of Paternity, the Council recognizes ONLY JOINT
and EQUAL CUSTODY of the parents, unless there is a hearing to
determine the fitness of a parent. Both parents therefore become
equally responsible for the care, nurture, and financial requirements
of the child or children. No parent shall assume a greater share of
a financial burden than the other can provide, or, of what a parent
can provide based upon the current economic status of a given parent
within a specified time frame. All child support payments shall be
based on a variable rate and upon an ability to pay based upon the
current economic status to be evaluated at l quarterly.
Section 51, Full Faith and Credit:
The Tuscarora Nation of New York Court shall give full faith and
credit to the public acts, records, and judicial proceedings of any
state, federal, or other tribunal involving Tuscarora Nation of New
York children which can demonstrate “Home State” jurisdiction as per
Sec.8. (a) Chap 115 of title 28, 1738A (b)(4), to the same extent that
these tribunals give full faith and credit to the public acts,
records, and judicial proceedings of the TUSCARORA NATION.
Section 52, Agreements With Other Governments:
The Tuscarora Nation of New York Council has the power to negotiate
with the United States, any of the several states of the Union, and
other Foreign Governments respecting jurisdiction over child custody
proceedings where the care and custody of Tuscarora Nation of New York
children are involved. Such agreements may provide for orderly
transfer of jurisdiction from other sovereigns to the Tuscarora Nation
of New York Court for resolution of cases involving Tuscarora Nation of
New York.
Section 53, Relations with Non Agencies:
The Tuscarora Nation of New York Court shall take reasonable measures
to encourage and promote cooperative working relationships with non
child welfare resources where such relationships are not in
conflict with Tuscarora Nation of New York Custom and Law and are in
the best interests of the TUSCARORA NATION. The Court shall at all
times keep in mind its responsibility to first serve the best interests
of Tuscarora Nation of New York children and the TUSCARORA NATION as a
whole when dealing with non agencies.
The Tuscarora Nation of New York Band exercises full and exclusive
jurisdiction over its citizens and members and, therefore, has the
power to preempt any of the several states when the welfare of
Tuscarora Nation of New York children is involved. Further, as
recognized less than 25 U.S.C. so 229, the Tuscarora Nation of New York
has the power to assume exclusive jurisdiction over the actions of
Tuscarora Nation of New York parents or Indian custodians in reference
to child custody issues where violations of state law are alleged.
Although the Tuscarora Nation of New York is under no obligation to
enforce the civil or criminal laws of another sovereignty when no
violations of Law are in evidence in the matter of the custody of
Tuscarora Nation of New York children nor is a state court proceeding
XXVI
regarded as valid when violations of any section/s) of the Indian Child
Welfare Act have been substantiated. However, the Tuscarora Nation of
New York Court, as a matter of courtesy, shall review the pending
charges of violation of state law together with supportive evidence,
and shall make available to interested parties the decision as to
what actions, if any, will be taken by the Council regarding
such charges against the parent or Indian custodian.
Section 54, Invalidating Illegal Actions:
The Tuscarora Nation of New York Council may request or petition the
Tuscarora Nation of New York Court as a court of competent
jurisdiction to invalidate any action for foster care placement,
temporary or permanent; or, limitation or termination of parental
rights under state law where such action violated 25 U.S.C. 1901-
1913 (Indian Child Welfare Act), and/or any section of the
Child Welfare Law. In addition, the Tuscarora Nation of New York
Court may act on its own initiative to invalidate any of the before
said actions of a state court upon finding that such action violated
25 U.S.C. 1901-1913, or any provision of the Child Welfare
Law which adversely affects the Nation’s interests.
Section 55, Reports on Tuscarora Nation of New York Child Welfare
Programs.
Upon request of the Council, but in any case no less often
than annually, the Tuscarora Nation of New York court shall report to
the Tuscarora Nation of New York Council on its activities, new
presidents in case law and on the unmet needs of Tuscarora Nation of
New York children and families for child welfare assistance.
Information
which identifies specific Tuscarora Nation of New York children or
families shall not be reported unless the Council specifically directs
that such information is necessary to enable the Council to evaluate
the Court’s activities and effectiveness in carrying out this
ordinance. The Tuscarora Nation of New York Council shall meet in
closed executive session when considering such personal and
confidential information.
XXVII