2023 Montana Code Annotated › Title 41. Minors › Chapter 3. Child Abuse and Neglect › Part 13. Montana Indian Child Welfare Act › 41-3-1306. Determination of Indian status -- confidentiality of records

41-3-1306. (Temporary) Determination of Indian status -- confidentiality of records.
(1) (a) A party seeking the foster care placement of, termination of parental rights over, or adoption of a child shall use due diligence to determine whether the child is an Indian child. The inquiry must be made in consultation with:
(i) the child's parent or parents;
(ii) an individual who has custody of the child or with whom the child resides;
(iii) any other individual who reasonably may be expected to have information regarding the child's possible membership or eligibility for membership in an Indian tribe; and
(iv) any Indian tribe of which the child may be a member or may be eligible for membership. The consultation with a tribe must be made by contacting the tribe in writing.
(b) The inquiries required under this subsection (1) must be documented in the record.
(2) Preliminary contacts for the purpose of using due diligence to determine a child's possible Indian status do not constitute legal notice as required by 41-3-1311.
(3) A court shall ask each participant in an emergency proceeding or voluntary or involuntary child custody proceeding whether the participant knows or has reason to know that the child is an Indian child. The inquiry must be made at the commencement of the proceeding and all responses must be on the record. The court shall instruct the parties to inform the court if they subsequently receive information that provides reason to know the child is an Indian child.
(4) If there is reason to know the child is an Indian child but the court does not have sufficient evidence to determine that the child is or is not an Indian child, the court shall confirm, by way of a report, declaration, or testimony included in the record, that the department or other party used due diligence to identify and work with all tribes of which there is reason to know the child may be a member or eligible for membership to verify whether the child is a member or eligible for membership.
(5) A court, on conducting the inquiry required in subsection (3), has reason to know that a child involved in an emergency proceeding or child custody proceeding may be an Indian child if:
(a) any participant in the proceeding, officer of the court involved in the proceeding, Indian tribe, Indian organization, or agency informs the court that:
(i) the child is an Indian child; or
(ii) it has discovered information indicating that the child is an Indian child;
(b) the child who is the subject of the proceeding gives the court reason to know the child is an Indian child;
(c) the court is informed that the residence or domicile of the child, the child's parent, or the child's Indian custodian is on a reservation or in an Alaska Native village;
(d) the court is informed that the child is or has been a ward of a tribal court;
(e) the court is informed that either of the parents or the child possesses an identification card indicating membership in an Indian tribe; or
(f) the court determines from additional information provided that the child may be an Indian child.
(6) (a) When seeking verification of a child's Indian status during a voluntary proceeding, the court shall keep relevant documents pertaining to the inquiry confidential and under seal if a consenting parent expresses either orally or in writing a desire for anonymity. A request for anonymity does not relieve the court, agency, or other party from any duty of compliance with this part, including the obligation to verify whether the child is an Indian child.
(b) A tribe receiving information related to an inquiry of a child's status as an Indian child must keep documents and information confidential.
(7) A written determination by an Indian tribe regarding the child's status as an Indian child is conclusive that the child is an Indian child. (Terminates June 30, 2025--sec. 55, Ch. 716, L. 2023.)
History: En. Sec. 4, Ch. 716, L. 2023.