An Act to Enact the Maine Indian Child Welfare Act
Maine Legislature, Session 131, LD 1970
Committee: Judiciary
Sponsors: BAILEY, DANA, BEEBE-CENTER, BRAKEY, BRENNER, CARNEY, CHIPMAN, CURRY, DAUGHTRY, DUSON, GROHOSKI, HICKMAN, JACKSON, MOORE, PIERCE, RAFFERTY, RENY, ROTUNDO, VITELLI, ABDI, ANKELES, ARFORD, BRENNAN, CLOUTIER, CLUCHEY, COLLINGS, COPELAND, CRAFTS, CRAVEN, DHALAC, DILL, DOUDERA, EATON, FAULKINGHAM, FAY, GATTINE, GERE, GRAHAM, GRAMLICH, HASENFUS, HEPLER, JAUCH, KUHN, LANDRY, LANIGAN, LEE, MADIGAN, MALON, MASTRACCIO, MATLACK, MEYER, MILLETT, MILLIKEN, MOONEN, MORIARTY, MURPHY, O'CONNELL, O'NEIL, OSHER, PAULHUS, PERRY, PLUECKER, PRINGLE, RANA, RIELLY, ROEDER, SACHS, SALISBURY, SARGENT, SHAGOURY, SHAW, SHEEHAN, SKOLD, STOVER, TALBOT ROSS, TERRY, WARREN, WHITE, WILLIAMS, WORTH, ZAGER

Legislative Document
No. 1970
S.P. 804
In Senate, May 18, 2023
An Act to Enact the Maine Indian Child Welfare Act
Reference to the Committee on Judiciary suggested and ordered printed.
DAREK M. GRANT
Secretary of the Senate
Presented by Senator BAILEY of York.
Cosponsored by Representative DANA of the Passamaquoddy Tribe and
Senators: BEEBE-CENTER of Knox, BRAKEY of Androscoggin, BRENNER of Cumberland, CARNEY of 
Cumberland, CHIPMAN of Cumberland, CURRY of Waldo, DAUGHTRY of Cumberland, DUSON of 
Cumberland, GROHOSKI of Hancock, HICKMAN of Kennebec, President JACKSON of Aroostook, MOORE of 
Washington, PIERCE of Cumberland, RAFFERTY of York, RENY of Lincoln, ROTUNDO of Androscoggin, 
VITELLI of Sagadahoc, Representatives: ABDI of Lewiston, ANKELES of Brunswick, ARFORD of Brunswick, 
BRENNAN of Portland, CLOUTIER of Lewiston, CLUCHEY of Bowdoinham, COLLINGS of Portland, 
COPELAND of Saco, CRAFTS of Newcastle, CRAVEN of Lewiston, DHALAC of South Portland, DILL of Old 
Town, DOUDERA of Camden, EATON of Deer Isle, FAULKINGHAM of Winter Harbor, FAY of Raymond, 
GATTINE of Westbrook, GERE of Kennebunkport, GRAHAM of North Yarmouth, GRAMLICH of Old Orchard 
Beach, HASENFUS of Readfield, HEPLER of Woolwich, JAUCH of Topsham, KUHN of Falmouth, LANDRY 
of Farmington, LANIGAN of Sanford, LEE of Auburn, MADIGAN of Waterville, MALON of Biddeford, 
MASTRACCIO of Sanford, MATLACK of St. George, MEYER of Eliot, MILLETT of Cape Elizabeth, 
MILLIKEN of Blue Hill, MOONEN of Portland, MORIARTY of Cumberland, MURPHY of Scarborough, 
O'CONNELL of Brewer, O'NEIL of Saco, OSHER of Orono, PAULHUS of Bath, PERRY of Calais, 
PLUECKER of Warren, PRINGLE of Windham, RANA of Bangor, RIELLY of Westbrook, ROEDER of Bangor, 
SACHS of Freeport, SALISBURY of Westbrook, SARGENT of York, SHAGOURY of Hallowell, SHAW of 
Auburn, SHEEHAN of Biddeford, SKOLD of Portland, STOVER of Boothbay, Speaker TALBOT ROSS of 
Portland, TERRY of Gorham, WARREN of Scarborough, WHITE of Waterville, WILLIAMS of Bar Harbor, 
WORTH of Ellsworth, ZAGER of Portland.
Be it enacted by the People of the State of Maine as follows:
Sec. 1.  22 MRSA c. 1066 is enacted to read:
CHAPTER 1066
MAINE INDIAN CHILD WELFARE ACT
§3941.  Short title
This Act may be known and cited as "the Maine Indian Child Welfare Act."
§3942.  Declaration of policy
The purpose of the Maine Indian Child Welfare Act is recognition by the State that 
Indian tribes have a continuing and compelling governmental interest in an Indian child 
whether or not the child is in the physical or legal custody of an Indian parent, an Indian 
custodian or an Indian extended family member at the commencement of an Indian child 
custody proceeding or the Indian child has resided or is domiciled on an Indian reservation. 
The State is committed to protecting the essential tribal relations and best interests of an 
Indian child by promoting practices in accordance with all laws designed to prevent the 
Indian child's voluntary or involuntary out-of-home placement and, whenever such 
placement is necessary or ordered, by placing the Indian child, whenever possible, in a 
placement that reflects the unique values of the child's tribal culture and that is best able to 
assist the child in establishing, developing and maintaining a political, cultural and social 
relationship with the Indian child's tribe and tribal community. It is the policy of the State 
to cooperate fully with Indian tribes and tribal members and citizens in this State and 
elsewhere in order to ensure that the intent and provisions of this Act are enforced.
§3943.  Definitions
As used in this Act, unless the context otherwise indicates, the following terms have 
the following meanings.
1.  Active efforts.  "Active efforts" means affirmative, active, thorough and timely 
efforts tailored to the facts and circumstances of the case and intended primarily to maintain 
or reunite an Indian child with that child's family.  When an agency is involved in the Indian 
child custody proceeding, active efforts must include assisting the parent or parents or 
Indian custodian through the steps of a case plan and with accessing or developing the 
resources necessary to satisfy the case plan.  Active efforts may include:
A. Conducting a comprehensive assessment of the circumstances of the Indian child's 
family, with a focus on safe reunification as the most desirable goal;
B. Identifying appropriate services and helping the parents to overcome barriers, 
including actively assisting the parents in obtaining such services;
C. Identifying, notifying and inviting representatives of the Indian child's tribe to 
participate in providing support and services to the Indian child's family and in family 
team meetings, permanency planning and resolution of placement issues;
D. Conducting or causing to be conducted a diligent search for the Indian child's 
extended family members and contacting and consulting with extended family 
members to provide family structure and support for the Indian child and the Indian 
child's parents;
E. Offering and implementing all available and culturally appropriate family 
preservation strategies and facilitating the use of remedial and rehabilitative services 
provided by the Indian child's tribe;
F. Taking steps to keep siblings together whenever possible;
G. Supporting regular visits with parents or Indian custodians in the most natural 
setting possible as well as trial home visits of the Indian child during any period of 
removal, consistent with the need to ensure the health, safety and welfare of the child;
H. Identifying community resources including housing, financial, transportation, 
mental health, substance abuse and peer support services and actively assisting the 
Indian child's parents or, when appropriate, the child's family, in utilizing and accessing 
those resources;
I. Monitoring progress and participation in services;
J. Considering alternative ways to address the needs of the Indian child's parents and, 
when appropriate, the family, if the optimum services do not exist or are not available; 
and
K. Providing post-reunification services and monitoring.
2.  Adoptive placement.  "Adoptive placement" means the permanent placement of an 
Indian child for adoption, including any action resulting in a final decree of adoption.
3.  Domicile.  "Domicile" means:
A. For a parent or Indian custodian, the place at which a person has been physically 
present and that the person regards as home; a person's true, fixed, principal and 
permanent home, to which that person intends to return and remain indefinitely even 
though the person may be currently residing elsewhere; and
B. For an Indian child, the domicile of the Indian child's parents or Indian custodian or 
guardian or, in the case of an Indian child whose parents are not married to each other, 
the domicile of the Indian child's custodial parent.
4.  Emergency proceeding.  "Emergency proceeding" means a court action that 
involves the emergency removal or emergency placement of an Indian child, including 
those pursuant to section 4034 or Title 18-C, Article 5.  
5.  Extended family member.  "Extended family member" means a person who is 
defined as a member of an Indian child's extended family by the law or custom of the Indian 
child's tribe or, in the absence of such law or custom, a person who has reached 18 years 
of age and who is the Indian child's grandparent, aunt or uncle, sibling, sibling-in-law, niece 
or nephew, first or second cousin or stepparent. 
6.  Foster care placement.  "Foster care placement" means the removal of an Indian 
child from the home of the child's parent or Indian custodian for temporary placement in a 
foster home, qualified residential treatment program, residential care center for Indian 
children and youth, or shelter care facility, in the home of a relative other than a parent or 
Indian custodian, or in the home of a guardian or conservator, from which placement the 
parent or Indian custodian cannot have the child returned upon demand. "Foster care 
placement" does not include an adoptive placement, a preadoptive placement, an 
emergency removal or the detention of an Indian child.  
7.  Indian.  "Indian" means a person who is a member or citizen of an Indian tribe, or 
who is an Alaska Native and a member of a Regional Corporation as defined in 43 United 
States Code, Section 1606. Only an Indian tribe may determine its membership or 
citizenship, including eligibility for membership or citizenship.  
8.  Indian child.  "Indian child" means an unmarried person who is under 18 years of 
age and is a member or citizen of an Indian tribe or is eligible for membership in or 
citizenship of an Indian tribe and is the biological child of a member or citizen of an Indian 
tribe.
9.  Indian child custody proceeding.  "Indian child custody proceeding" means a 
proceeding, other than an emergency proceeding, that may culminate in any of the 
following outcomes:
A.  Adoptive placement;
B.  Foster care placement; 
C.  Preadoptive placement; or
D.  Termination of parental rights.
An Indian child custody proceeding does not include a proceeding that may culminate in 
an outcome for which placement is based upon an act by an Indian child that, if committed 
by an adult, would be considered a crime or a placement upon award of custody to one of 
the Indian child's parents in a divorce proceeding.
10.  Indian child's tribe.  "Indian child's tribe" means the Indian tribe in which an 
Indian child is a member or citizen, or eligible for membership or citizenship. In cases in 
which a child meets the definition of "Indian child" through more than one Indian tribe, the 
Indian tribes must be given an opportunity to agree on which tribe is the Indian tribe for 
purposes of this Act.  If the Indian tribes are not able to come to an agreement, the court 
shall designate the Indian child's tribe for purposes of this Act based on which Indian tribe 
has more significant contacts with the Indian child.
11.  Indian custodian.  "Indian custodian" means an Indian person who has legal 
custody of an Indian child under tribal law or custom or under state law or to whom 
temporary physical care, custody and control has been transferred by the parent of the 
Indian child. 
12.  Indian organization.  "Indian organization" means a group, association, 
partnership, corporation or other legal entity owned or controlled by Indians, or a majority 
of whose members are Indians. 
13.  Indian tribe.  "Indian tribe" means an Indian tribe, band, nation or other organized 
group or community of Indians recognized as eligible for the services provided to Indians 
by the United States Secretary of the Interior because of their status as Indians, including 
an Alaska Native village as defined in 43 United States Code, Section 1602(c). 
14.  Involuntary Indian child custody proceeding.  "Involuntary Indian child custody 
proceeding" means an Indian child custody proceeding or emergency proceeding in which:
A.  The parent or Indian custodian does not consent of that parent's or Indian custodian's 
free will to the foster care placement, preadoptive placement, adoptive placement or 
termination of parental rights of or to an Indian child; or 
B.  The parent or Indian custodian consents to the foster care placement, preadoptive 
placement or adoptive placement under threat of removal of the Indian child by a state 
court or agency.
15.  Parent.  "Parent" means a biological parent or parents of an Indian child or an 
Indian person who has lawfully adopted an Indian child, including adoptions under tribal 
law or custom. "Parent" does not include an unwed father when paternity has not been 
acknowledged or established.
16.  Preadoptive placement.  "Preadoptive placement" means the temporary 
placement of an Indian child in a foster home or institution after the termination of parental 
rights, but before or in lieu of adoptive placement.
17.  Qualified expert witness.  "Qualified expert witness" means a person who meets 
the requirements of section 3954.
18.  Reservation.  "Reservation" means Indian country, as defined in 18 United States 
Code, Section 1151, or any land not covered under that section to which title is either held 
by the United States in trust for the benefit of an Indian tribe or Indian or held by an Indian 
tribe or Indian, subject to a restriction by the United States against alienation.
19.  Termination of parental rights. "Termination of parental rights" means an action 
resulting in the termination of the parent-child relationship.  
20.  Tribal court.  "Tribal court" means a court of an Indian tribe with jurisdiction 
over Indian child custody proceedings, including a federal court of Indian offenses, a court 
established and operated under the code or custom of an Indian tribe or any other 
administrative body of an Indian tribe that is vested with authority over Indian child custody 
proceedings. 
21.  Voluntary proceeding.  "Voluntary proceeding" means an Indian child custody 
proceeding or emergency proceeding in which a parent or Indian custodian consents, of 
that person's free will and without the threat of removal by a state agency, to:
A.  The foster care placement, preadoptive placement or adoptive placement of an 
Indian child; or 
B.  The termination of parental rights to an Indian child.  
§3944. Jurisdiction over Indian child custody proceedings 
1.  Exclusive jurisdiction.  An Indian tribe has jurisdiction exclusive as to the courts 
of the State over any Indian child custody proceeding or emergency proceeding held in this 
State involving an Indian child who resides or is domiciled within the reservation of that 
Indian tribe, except when the jurisdiction is otherwise vested in this State by federal law.  
When an Indian child is a ward of a tribal court, the Indian tribe retains exclusive 
jurisdiction, notwithstanding the residence or domicile of the child.  Except as provided in 
section 3953, any Indian child custody proceeding or emergency proceeding in District 
Court or Probate Court that is within the exclusive jurisdiction of an Indian tribe must be 
dismissed.  The court shall expeditiously notify the tribal court of the pending dismissal 
based on the tribe's exclusive jurisdiction and ensure that the tribal court is sent all 
information regarding the proceeding, including but not limited to the pleadings and any 
court record.
2.  Transfer of proceedings; declination by tribal court.  In any proceeding for the 
foster care placement of, or termination of parental rights to, an Indian child who is not 
domiciled or residing within the reservation of the Indian child's tribe, the District Court or 
Probate Court shall, upon the petition of the Indian child's parent, Indian custodian or tribe, 
promptly notify the tribal court of the transfer petition and transfer the proceeding to the 
jurisdiction of the Indian child's tribe unless any of the following applies:
A.  A parent of the Indian child objects to the transfer;
B.  The Indian child's tribe does not have a tribal court, or the tribal court of the Indian 
child's tribe declines jurisdiction; or
C.  The court determines that good cause exists to deny the transfer.  The party 
opposing transfer has the burden to show good cause by clear and convincing evidence.  
The good cause determination must be based on which court is best positioned to 
adjudicate the proceeding, not on the potential outcome of the proceeding. In 
determining whether good cause exists, the court may not consider: 
(1)  Whether the foster care placement or termination of parental rights proceeding 
is at an advanced stage if the Indian child's parent, Indian custodian or tribe did not 
receive notice of the child custody proceeding until an advanced stage; 
(2)  Whether there have been prior proceedings involving the Indian child for 
which no petition to transfer was filed; 
(3)  Whether transfer could affect the placement of the Indian child; 
(4)  The Indian child's cultural connections with the tribe or its reservation; or 
(5)  Socioeconomic conditions or any negative perception of tribal or United States 
Department of the Interior, Bureau of Indian Affairs social services or judicial 
systems.
3.  Intervention.  An Indian child's Indian custodian or tribe may intervene in any 
proceeding for the foster care placement of, or termination of parental rights to, an Indian 
child at any point in the proceeding. 
4.  Full faith and credit.  The State shall give full faith and credit to the public acts, 
records and judicial proceedings of any Indian tribe that are applicable to an Indian child 
custody proceeding to the same extent that the State gives full faith and credit to the public 
acts, records and judicial proceedings of any other governmental entity.
§3945. Court proceedings
1.  Determination of Indian child status.  In any Indian child custody proceeding or 
emergency proceeding, the District Court or Probate Court shall ask each participant 
whether the participant knows or has reason to know that the child is an Indian child.  The 
court shall use the procedures in 25 Code of Federal Regulations, Section 23.107 to 
determine if a child may be an Indian child.
2.  Notice; time for commencement of proceedings; additional time for 
preparation.  In any involuntary Indian child custody proceeding in which the District 
Court or Probate Court or a party to the proceeding knows or has reason to know that an 
Indian child is involved, the party seeking the adoptive placement, foster care placement, 
preadoptive placement or termination of parental rights of or to an Indian child shall notify 
the parent or Indian custodian and the Indian child's tribe of the pending proceedings and 
of their right of intervention.  
A.  The notice in any involuntary Indian child custody proceeding involving an Indian 
child must be written in clear and understandable language and must conform with the 
requirements of 25 Code of Federal Regulations, Section 23.111(d).  The District Court 
and Probate Court may create a form that complies with this paragraph.
B.  The notice must be sent by certified mail, return receipt requested.  The notice to 
the Indian child's tribe must be sent by certified mail, return receipt requested, and via 
e-mail, at the mailing address and e-mail address on file with the United States 
Department of the Interior, Bureau of Indian Affairs.  
C.  If the identity or location of the parent or Indian custodian and the Indian tribe 
cannot be determined, notice under this subsection must be given to the United States 
Secretary of the Interior in like manner, who has 15 days after receipt to provide the 
requisite notice to the parent or Indian custodian and the Indian tribe. 
D.  An original or a copy of each notice sent under this subsection must be filed with 
the court together with any return receipts or other proof of service.  
E.  The first hearing in the proceeding may not be held until at least 10 days after receipt 
of the notice by the parent, Indian custodian and Indian tribe or the United States 
Secretary of the Interior.  
F.  On the request of a parent, Indian custodian or Indian tribe, the court shall grant a 
continuance of up to 20 additional days to enable the requester to prepare for the 
hearing.
3.  Appointment of counsel.  Parents and Indian custodians are entitled to legal 
counsel in any removal, placement or termination proceeding.  A parent or Indian custodian 
may request the court to appoint legal counsel for them.  The District Court or Probate 
Court, upon a finding that the parent or Indian custodian is indigent, shall appoint and pay 
the reasonable costs and expenses of their legal counsel.  The court may, in its discretion, 
appoint counsel for the Indian child upon a finding that such appointment is in the best 
interest of the Indian child.  
4.  Examination of reports or other documents.  Each party to a foster care placement 
or termination of parental rights proceeding under state law involving an Indian child has 
the right to examine all reports or other documents filed with the court upon which any 
decision with respect to the proceeding may be based.
5.  Remedial services, rehabilitative programs and preventive measures.  A party 
seeking to effect a foster care placement of, or termination of parental rights to, an Indian 
child under chapter 1071 or Title 18-C, Article 5 or 9 shall satisfy the court that active 
efforts have been made to provide remedial services and rehabilitative programs designed 
to prevent the breakup of the Indian family and that these efforts have proved unsuccessful. 
6.  Foster care placement.  Foster care placement may not be ordered in the absence 
of a determination, supported by clear and convincing evidence, including testimony of 
qualified expert witnesses, that the continued custody of the Indian child by the parent or 
Indian custodian is likely to result in serious emotional or physical damage to the Indian 
child.  The evidence must show a causal relationship between the particular conditions in 
the home and the likelihood that continued custody of the Indian child will result in serious 
emotional or physical damage to the particular Indian child who is the subject of the Indian 
child custody proceeding.
7.  Termination of parental rights.  Termination of parental rights may not be ordered 
in the absence of a determination, supported by evidence beyond a reasonable doubt, 
including testimony of qualified expert witnesses, that the continued custody of the Indian 
child by the parent or Indian custodian is likely to result in serious emotional or physical 
damage to the Indian child.  The evidence must show a causal relationship between the 
particular conditions in the home and the likelihood that continued custody of the Indian 
child will result in serious emotional or physical damage to the particular Indian child who 
is the subject of the Indian child custody proceeding.  
§3946. Parental rights; voluntary termination 
1. Consent; record; certification matters; invalid consents.  When a parent or Indian 
custodian voluntarily consents to a foster care placement or to termination of parental 
rights, this consent is not valid unless executed in writing and recorded before a judge of 
the District Court or Probate Court.  The court shall certify in writing that the terms and 
consequences of the consent were fully explained in detail and were fully understood by 
the parent or Indian custodian. The court shall also certify that either the parent or Indian 
custodian fully understood the explanation in English or that it was interpreted into a 
language that the parent or Indian custodian understood. Consent given prior to, or within 
days after, birth of an Indian child is not valid. 
2.  Foster care placement; withdrawal of consent; return of custody.  Any parent 
or Indian custodian may withdraw consent to a voluntary foster care placement under the 
laws of this State at any time and, upon such withdrawal, the Indian child must be returned 
to the parent or Indian custodian. 
3.  Voluntary termination of parental rights or adoptive placement; withdrawal 
of consent; return of custody.  In any voluntary proceeding for termination of parental 
rights to, or adoptive placement of, an Indian child, the consent of the parent or Indian 
custodian may be withdrawn for any reason at any time prior to the entry of a final decree 
of termination or adoption, as the case may be, and the Indian child must be returned to the 
parent or Indian custodian. 
4.  Collateral attack; vacation of decree and return of custody; limitations.  After 
the entry of a final decree of adoption of an Indian child in the District Court or Probate 
Court in a voluntary proceeding, the parent or Indian custodian may withdraw consent to 
the adoption upon the grounds that consent was obtained through fraud or duress and may 
petition the court to vacate the decree.  Upon a finding that the consent was obtained 
through fraud or duress, the court shall vacate the decree and return the Indian child to the 
parent or Indian custodian.  An adoption that has been effective for 2 years or longer may 
not be invalidated under the provisions of this subsection. 
§3947. Petition to court of competent jurisdiction to invalidate action upon showing 
of certain violations 
An Indian child who is the subject of an action for foster care placement or termination 
of parental rights under the laws of this State, a parent or Indian custodian from whose 
custody the Indian child was removed under the laws of this State and the Indian child's 
tribe may petition the District Court to invalidate the action upon a showing that the action 
violated any provision of sections 3944 to 3946. 
§3948. Placement of Indian children  
1.  Adoptive placements; preferences.  In an adoptive placement of an Indian child 
under the laws of this State, placement preference must be given, in the absence of good 
cause to the contrary, in descending order, as listed below:
A.  An extended family member of the Indian child;
B.  Another member or citizen of the Indian child's tribe;
C.  A member or citizen of an Indian tribe in which the Indian child is eligible for 
membership or citizenship, but that is not the Indian child's tribe;
D.  Another Indian with whom the Indian child has a relationship; or
E.  Another Indian from a tribe that is culturally similar to or linguistically connected 
to the Indian child's tribe.
2.  Foster care or preadoptive placements; criteria; preferences.  An Indian child 
accepted for foster care placement or preadoptive placement must be placed in the least 
restrictive setting that most approximates a family and in which that Indian child's special 
needs, if any, may be met.  The Indian child must also be placed within reasonable 
proximity to that Indian child's home, taking into account any special needs of the child.  
In any foster care placement or preadoptive placement, placement preference must be 
given, in the absence of good cause to the contrary, in descending order, as listed below: 
A.  An extended family member of the Indian child;
B.  A foster home licensed, approved or specified by the Indian child's tribe; 
C.  An Indian foster home licensed or approved by an authorized non-Indian licensing 
authority; or 
D.  An institution for children approved by an Indian tribe or operated by an Indian 
organization that has a program suitable to meet the Indian child's needs. 
3. Good cause to deviate from placement preferences.  The party seeking departure 
from the placement preferences under this section bears the burden of proving by clear and 
convincing evidence that there is good cause to depart from the placement preferences.  A 
court's determination of good cause to depart from the placement preferences must be made 
on the record or in writing and may be based on one or more of the following 
considerations:
A.  The request of one or both of the Indian child's parents, if they attest that they have 
reviewed the placement options, if any, that comply with the order of preference;
B.  The request of the Indian child, if the Indian child is of sufficient age and capacity 
to understand the decision that is being made;
C.  The presence of a sibling attachment that can be maintained only through a 
particular placement;
D.  The extraordinary physical, mental or emotional needs of the Indian child, such as 
specialized treatment services that may be unavailable in the community where 
families who meet the placement preferences live; or
E.  The unavailability of a suitable placement after a determination by the court that a 
diligent search was conducted to find suitable placements meeting the preference 
criteria, but none has been located. For purposes of a determination under this 
paragraph, the standards for determining whether a placement is unavailable must 
conform to the prevailing social and cultural standards of the Indian community in 
which the Indian child's parent or extended family resides or with which the Indian 
child's parent or extended family members maintain social and cultural ties.
A placement may not depart from the preferences under this section based on the 
socioeconomic status of any placement relative to another placement.  A placement may 
not depart from the preferences based solely on ordinary bonding or attachment that 
developed from time spent in a nonpreferred placement that was made in violation of this 
Act.
4.  Tribal resolution for different order of preference; personal preference 
considered; anonymity in application of preferences.  In the case of a placement under 
subsection 1 or 2, if the Indian child's tribe establishes a different order of preference by 
resolution, the agency or court effecting the placement shall follow that order as long as 
the placement is the least restrictive setting appropriate to the particular needs of the Indian 
child, as provided in subsection 2. When appropriate, the preference of the Indian child or 
parent must be considered.  When a consenting parent evidences a desire for anonymity, 
the court or agency must give weight to such desire in applying the preferences. 
5.  Social and cultural standards applicable.  The standards to be applied in meeting 
the preference requirements of this section must be the prevailing social and cultural 
standards of the Indian community in which the parent or extended family resides or with 
which the parent or extended family members maintain social and cultural ties. 
6. Record of placement; availability.  A record of each placement under this section 
of an Indian child must be maintained by the State, including evidence of the efforts made 
to comply with the order of preference specified in this section. The record must be made 
available at any time upon the request of the United States Secretary of the Interior or the 
Indian child's tribe. 
§3949. Return of custody
1.  Petition; best interests of Indian child.  Notwithstanding any provision of law to 
the contrary, whenever a final decree of adoption of an Indian child has been vacated or set 
aside or the adoptive parents voluntarily consent to the termination of their parental rights 
to the Indian child, a biological parent or prior Indian custodian may petition for return of 
custody and the court shall grant the petition unless there is a showing, in a proceeding 
subject to the provisions of section 3945, that the return of custody is not in the best interests 
of the Indian child. 
2.  Removal from foster care placement; procedure.  Whenever an Indian child is 
removed from a foster care home or institution for the purpose of further foster care 
placement or preadoptive or adoptive placement, the placement must be in accordance with 
the provisions of this chapter, except for a case in which an Indian child is being returned 
to the parent or Indian custodian from whose custody the Indian child was originally 
removed.
§3950. Disclosure of tribal affiliation information
Upon application by an individual who has reached 18 years of age and who was an 
Indian child and the subject of an adoptive placement, the District Court or Probate Court 
that entered the final decree shall inform the individual of the tribal affiliation, if any, of 
the individual's biological parents and provide any other information necessary to protect 
any rights of the individual arising from the individual's tribal relationship. 
§3951. Improper removal of Indian child from custody; declination of jurisdiction; 
forthwith return of Indian child; danger exception 
When a petitioner in an Indian child custody proceeding before a state court has 
improperly removed the Indian child from custody of the parent or Indian custodian or has 
improperly retained custody after a visit or other temporary relinquishment of custody, the 
court shall decline jurisdiction over the petition and shall forthwith return the Indian child 
to the child's parent or Indian custodian unless returning the Indian child to the child's 
parent or Indian custodian would subject the Indian child to a substantial and immediate 
danger or threat of such danger. 
§3952. Higher state or federal standard applicable to protect rights of parent or 
Indian custodian of Indian child; interpretive guidance
In any case in which state or federal law applicable to an Indian child custody 
proceeding under state or federal law provides a higher standard of protection to the rights 
of the parent or Indian custodian of an Indian child than the rights provided under this 
chapter, the state or federal court shall apply the higher state or federal standard. 
To the extent any procedure of an Indian child custody proceeding is not addressed in 
this Act, 25 Code of Federal Regulations, Part 23 must inform state practice.  
§3953. Emergency removal or placement of Indian child; termination; appropriate 
action 
This Act does not prevent the emergency removal of an Indian child who is a resident 
of or is domiciled on a reservation, but temporarily located off the reservation, from their 
parent or Indian custodian or the emergency placement of an Indian child in a foster home 
or institution, under the laws of this State, in order to prevent imminent physical damage 
or harm to the Indian child. 
1.  Termination.  An emergency removal or placement of an Indian child in an 
emergency proceeding must terminate immediately when the removal or placement is no 
longer necessary to prevent imminent physical damage or harm to the Indian child.  An 
emergency removal or placement of an Indian child may be terminated by, but is not 
necessarily terminated by, one of the following actions:
A.  Initiation of an Indian child custody proceeding subject to the provisions this Act;
B.  Transfer of the Indian child to the jurisdiction of the appropriate Indian tribe; or
C.  Restoration of the Indian child to the parent or Indian custodian.
2.  Procedure applicable to emergency proceedings.  In any emergency proceeding 
in District Court or Probate Court, the court shall:
A.  Make a finding on the record that the emergency removal or placement is necessary 
to prevent imminent physical damage or harm to the Indian child;
B.  Promptly hold a hearing on whether the emergency removal or placement continues 
to be necessary whenever new information indicates that the emergency situation has 
ended;
C.  At any court hearing during the emergency proceeding, determine whether the 
emergency removal or placement is no longer necessary to prevent imminent physical 
damage or harm to the Indian child; and
D.  Immediately terminate or ensure that the petitioning party immediately terminates 
the emergency proceeding once the court or petitioning party possesses sufficient 
evidence to determine that the emergency removal or placement is no longer necessary 
to prevent imminent physical damage or harm to the Indian child. 
§3954. Qualified expert witness
1.  Identification.  In any proceeding subject to this Act that requires the testimony of 
a qualified expert witness, the qualified expert witness must be provided by the petitioner 
and must meet the criteria of subsection 3 or 4.  A qualified expert witness may be identified 
based on information from the Indian child's tribe or with the assistance of the United States 
Department of the Interior, Bureau of Indian Affairs.  
2.  Testimony provided.  In any proceeding subject to this Act that requires the 
testimony of a qualified expert witness, at least one qualified expert witness must testify 
regarding:
A.  The prevailing social and cultural standards and child-rearing practices of the Indian 
child's tribe; and
B.  Whether the Indian child's continued custody by the Indian child's parent or Indian 
custodian is likely to result in serious emotional or physical damage to the Indian child.  
3.  Tribal qualification.  A person is a qualified expert witness under this section if 
the Indian child's tribe has designated the person as being qualified to testify to the 
prevailing social and cultural standards of the Indian tribe.
4.  Alternative qualification.  If the Indian child's tribe has not designated a qualified 
expert witness or the designated qualified expert witness is unavailable, the following 
individuals, in order of priority, may testify as a qualified expert witness:
A.  A member of the Indian child's tribe who is recognized by the tribal community as 
knowledgeable in tribal customs as they pertain to family organization and child-
rearing practices;
B.  A member of another Indian tribe who is recognized to be a qualified expert witness 
by the Indian child's tribe based on the member's knowledge of the delivery of child 
and family services to Indians and the Indian child's tribe; 
C.  A layperson who is recognized by the Indian child's tribe as having substantial 
experience in the delivery of child and family services to Indians, and knowledge of 
prevailing social and cultural standards and child-rearing practices within the Indian 
child's tribe; or
D.  A professional person having substantial education and experience in the area of 
the professional person's specialty who can demonstrate knowledge of the prevailing 
social and cultural standards and child-rearing practices within the Indian child's tribe.
5.  Disqualified persons.  A petitioning party, an employee of the petitioning party or 
an employee of the Department of Health and Human Services may not serve as a qualified 
expert witness or a professional under this section.
§3955. Agreements between the State and Indian tribes
The State may enter into agreements with Indian tribes with respect to the care and 
custody of Indian children and jurisdiction over Indian child custody proceedings, 
including agreements that provide for orderly transfer of jurisdiction on a case-by-case 
basis and agreements that provide for concurrent jurisdiction between the State and Indian 
tribes. A revocation of an agreement under this section does not affect any action or 
proceeding over which a court has already assumed jurisdiction, unless the agreement 
provides otherwise.
SUMMARY
This bill enacts the Maine Indian Child Welfare Act to establish procedures and 
standards for cases concerning custody proceedings, foster care placements, termination of 
parental rights and adoptions involving Indian children.