Blackfeet Tribal Law and Order Code, Family Code

THE FAMILY COURT OF THE BLACKFEET TRIBE

OF THE BLACKFEET INDIAN RESERVATION

FAMILY CODE

TITLE
This law shall be entitled "The Family Code of the Blackfeet Tribe". This code is to be inserted in the proposed codification of Tribal Laws.

EMPOWERMENT

This law is enacted pursuant to Article VI Section 1(k) of the Constitution for the Blackfeet Tribe. This section grants to the Blackfeet Tribal Business Council the power -

To promulgate ordinances for the purpose of safeguarding the peace and safety of residents of the Blackfeet Indian Reservation; and to establish minor courts for the adjudication of claims or disputes arising amongst the members of the Tribe, and for the trial and punishment of members of the Tribe charged with the commission of offenses set forth in such ordinances.

CODE OF ETHICS
FOR BLACKFEET FAMILY COURT
MEMBERS

Members of the Blackfeet Family Court will abide by the Blackfeet Family Court Code of Ethics and all laws and regulations governing their activities.
Members of the Blackfeet Family Court will uphold the credibility and dignity of the Family Court concept by conducting all business in an honest, fair, professional, and humane manner.
Employees of the Blackfeet Family Court will not use their authority inappropriately, nor condone any illegal act or unethical practice related to the Family Court, or to the Blackfeet Community.
Blackfeet Family Court members may not use the Blackfeet Family Court for personal gain.
Members of the Blackfeet Family Court will avoid any action which could adversely affect the confidence of the public in the Blackfeet Family Court or the Blackfeet Nation.
The Blackfeet Family Court Members will serve and respond to requests without bias because of race, religion, sex, age, national origin or handicap.
The Blackfeet Family Court Members will respect the right to privacy of all individuals, and will keep information about the Family Court cases confidential.
Persons affiliated with the Blackfeet Family Court will not use confidential information obtained through their work for personal benefit.
Individuals working in the Blackfeet Family Court as staff must be trained in the operations of the court and child welfare systems, and in the nature of child abuse and neglect.
Blackfeet Family Court programs must respect a child's inherent right to grow up with dignity in a safe environment that meets that child's best interests.

CHAPTER 1

FINDINGS, POLICY AND INTENT

Section 1. Findings.

The Blackfeet Tribal Business Council finds that:

The Traditional Family with young people is one of the Tribe's most important resources, and the welfare and protection of the family members is of paramount importance to the Blackfeet Tribe.
It is important that the unity of the family be preserved and the members protected from abuse, neglect, or abandonment. To provide a continuum of services for families from prevention to residential treatment, with emphasis whenever possible on prevention, early intervention and community-based alternatives.
To secure the rights of and ensure fairness to the children, parents, guardians, custodians, or other parties who come before the Family Court under the provisions of this code.
The Blackfeet Tribe needs a competent and just Family Court system to ensure that other Courts will be willing to return family members and young people of the Tribe to the reservation for care and guidance.
The Blackfeet Family Court will recognize and acknowledge the Tribal Customs and traditions of the Blackfeet Nation with regard to child-rearing and family guidance.

Section 2. Policy and Intent Concerning Persons Under the Age of 18 Years.

The Family Court shall protect the child's interest by choosing a course of action and interpretation of this code which least restricts the child's freedom and is consistent with the safety, peace and interests of the Blackfeet Tribe.

All provisions and procedures established by this code shall be construed and applied so as to provide not less than the minimum requirements of due process to a child.
The Family Court shall protect the child's interest by choosing a course of action and interpretation of this Code which provides a safe, caring and nurturing environment for the child.

CHAPTER 2

DEFINITIONS

For the purpose of this Code the words and phrases shall have these meanings respectively ascribed to them:

"Abandon"- When a parent, guardian, custodian, or other person responsible for the welfare of a child:
1. Leaves the child without communication, or
2. Fails to support the child and there is not indication of that person's willingness to assume a parental role for a period in excess of six (6) months.
"Abuse" - Inflicting or causing physical or mental injury, harm or imminent danger to the physical or mental health or welfare of a child other than by accidental means, including abandonment, sexual abuse, excessive or unreasonable corporal punishment, malnutrition or substantial risk thereof, or any other acts and omissions by the parent(s) or other person responsible for the child's welfare.
"Adult" - A person eighteen (18) years of age or older, or otherwise emancipated by order of a court of competent jurisdiction.
"Child" - An Indian under the age of eighteen (18) years unmarried and has not been emancipated by order of a court of competent jurisdiction.
"Commit" - means to transfer to legal custody.
"Counselor" - An individual admitted to the bar of the Blackfeet Tribal Court.
"Court" - When used without further qualification, means the Blackfeet Family Court.
"Custodian" - Person, agency, organization or institution other than a parent or guardian, who has legal and physical custody of a minor and who is obligated to provide food, shelter and supervision to the minor.
"Custody" - The power to control the day-to-day activities of the minor.
"Delinquent Youth" - A youth who has committed an offense, that if committed by an adult, would constitute a criminal offense, or a youth who has previously been placed on probation, has violated the conditions of that probation.
"Dependent Youth" - A youth who is abandoned or is without parents or guardian or under the care and supervision of an unsuitable adult. A youth who has no proper guidance to provide for his/her necessary physical, moral, and emotional well-being. A youth who is destitute, and is dependent upon the public for support, and whose parent or parents have relinquished custody of the child and whose legal custody has been transferred to a licensed agency.
"Detention" - The placement of a person under eighteen (18) years of age in a physically restrictive facility, other than the youths' home, pending court disposition or execution of a court order for placement or commitment or final disposition of his/her case.
"Detention Facility" - A physically restrictive facility designed to prevent a youth from departing at will. The term includes a short-term detention center, and a regional detention facility, which have been approved or licensed by an appropriate agency.
"Domicile" - The place where a person has their true, fixed and permanent home and to which, whenever absent, he has the intention of returning.
"Domestic Violence" Inflicting or causing physical or mental injury, harm or imminent danger to the physical or mental health or welfare of a family member or substantial risk thereof.
"Emancipation" - The legal process by which a youth can become a legal adult, this status can be obtained by declaration of a Court of Law, or by marriage, or by providing proof to a court that an individual under 18 years of age has been responsible for their own care and welfare for a period of not less than six (6) months before the date in question.
"Elder" - A family member who has reached the age of fifty-five (55) years or a person of such age or condition that requires care in order to meet their daily needs of food, shelter, clothing, maintenance, emotional support, medical, or any other care on behalf of the elder.
"Elder Abuse" - Inflicting or causing physical or mental injury, harm or imminent danger to the physical or mental health or welfare of and Elder family member or substantial risk thereof.
"Elder Neglect" - A failure or refusal by those responsible for an Elder's welfare to provide reasonably adequate care (food, shelter, clothing), maintenance, emotional support, supervision, medical, surgical or any other care on behalf of the elder.
"Extended Family" - A person over the age of eighteen and who is the child's grandparent, aunt or uncle, brother or sister, brother-in-law or sister-in-law, niece or nephew, first or second cousin, or step-parent.
"Family Court" - Means the court established by this order to hear all proceedings which involves matters pertaining to the family and especially to any youths alleged to be a delinquent youth, a youth in need of supervision, a youth in need of care, and includes the family court judge, administrative officer, presenting officer, probation officer, child protection officer, clerk of the court, and juvenile investigating officer.
"Family Member" - Mothers, fathers, children, brothers, sisters and other past or present family members of a household. These relationships include relationships created by adoption and remarriage including step-children, step-parents and adoptive children and parents.
"Failure to Thrive" - A medical condition seen in young children where there is failure of the child to gain weight. This may be associated with a decrease in height, motor development and head size.
"Final Disposition" - means the implementation of a family court order for the disposition or placement of a youth.
"Foster home" - means a private residence licensed by the State of Montana or the Blackfeet Tribe for placement of a youth.
"Guardian" - A person other than the parent who is by law responsible for that child.
"Guardian Ad Litem" - A guardian appointed by the court to represent a child's interests many action before the court to which the child is a party.
"Guardianship" - The status created and defined by law, between a youth and an adult with the reciprocal rights, duties, and responsibilities.
"Homeless Youth" - Runaways, throwaways, or abducted youth eventually may become homeless. The implication is that the family has abandoned the youth completely or the youth has voluntarily exiled himself or herself from the family group.
"Imminent Danger" - Includes threatened harm and means a statement, overt act, condition or status which represents an immediate and substantial risk of physical, sexual or mental abuse or injury.
"Indian" - A person who is:
1. An enrolled member of any federally recognized Indian Tribe;
2. Eligible for enrollment in any Indian Tribe and a biological child of an enrolled member of an Indian Tribe; or
3. A descendent of a member of any Indian Tribe who is a resident or domiciliary of the Blackfeet Indian Reservation or who has significant family or cultural contacts with Blackfeet Indian Reservation.
"Initial Placement Hearing" - An informal hearing before the Blackfeet Family Court within seventy-two (72) hours of the time that a youth is placed in custody.
"Judge" - when used without further qualification, means the judge of the Blackfeet Family Court.
"Juvenile Offender" - or delinquent youth, is an Indian person who commits a delinquent act prior to his/her eighteenth (18) birthday.
"Juvenile Offense" - A criminal violation of the Tribal Law and Order Code of the Blackfeet Tribe which is committed by a person who is under the age of eighteen (18) at the time the offense was committed.
"Juvenile Presenter" - The juvenile presenter or juvenile presenting officer or any other person who performs the duties and responsibilities set forth in this code.
"Least Restrictive Environment" - The least drastic method of detention for achieving the court's goal; the restrictions placed on the child must be reasonably related; to the court's objectives and must be the least restrictive way of achieving that objective.
"Legal Custody" - The legal status created by order of a court of competent jurisdiction that gives a person the right and duty to:
1. Have physical custody of the youth;
2. Determine with whom the youth shall live and for what period;
3. Protect, train, and discipline the youth; and
4. Provide the youth with food, shelter, education, and ordinary medical care.
"Minor" - An Indian under the age of eighteen (18)years.
"Minor in need of care" - A minor who:
1. Has no parent or guardian available, willing or capable to care and/or protect him/her.
2. Has suffered or is likely to suffer a physical or emotional injury, inflicted by other than accidental means, which causes or creates a substantial risk of death, disfigurement, impairment of bodily functions or emotional health.
3. Has failed to thrive and has not been provided with adequate food, clothing, shelter, medical care, education or supervision by his/her parent(s), guardian or custodian.
4. Has been sexually abused, or
5. Has been committing delinquent acts as a result of parental pressure, guidance or approval.
"Minor in need of Supervision" - A youth who commits an offense prohibited by law that, if committed by an adult, would not constitute a criminal offense. A youth who violates a law regarding use of alcoholic beverages, and continues to exhibit behavior beyond control of the parents, guardian or custodian.
"Necessary parties" - includes the youth, his/her parents, guardian, custodian, or spouse.
"Neglect" - A failure or refusal by those responsible for a child's welfare to provide reasonably adequate care (food, shelter , clothing) , maintenance , emotional support, supervision, education, medical, surgical or any other care on behalf of the child. "Neglect" shall include "abandoned" children.
"Probable Cause" - A reasonable ground for belief in the existence of facts which would induce a reasonably intelligent person to believe that a cause of action exists.
"Relative" - An adult person who is related in any degree by blood, marriage or adoption or as otherwise defined by law or tribal custom.
"Reservation" - The Blackfeet Reservation in Montana.
"Restitution" - Payments in cash to the victim or with services to the victim or the general community when these payments are made pursuant to an informal adjustment, consent decree, contract, or other Family Court Order.
"Sexual Abuse" - Sexual acts committed against children by an adult or older child which include, but are not limited to, molestation, fondling, masturbation, intercourse, rape, exposure, pornography, incest and sodomy (anal/oral), as defined in Chapter 5, § 54 (A),(B), and (C) of the Blackfeet Tribal Law & Order Code.
"Shelter Care" - A temporary home or facility which does not physically restrict the freedom of a child that provides food, clothing and shelter pending court disposition for placement.
"Substantial Risk" - Means a strong Possibility as contrasted with a remote or insignificant possibility.
"Toxic Substances (Inhalants)" - Solvents, thinners, glue, gasoline, aerosol paints and other aerosols which have volatile hydrocarbons and if inhaled, can produce a feeling of drunkenness, dizziness and euphoria. This also includes Isobutyl Nitrite (Rush).
"Tribal Council" - The tribal council of the Blackfeet Tribe.
"Tribal Court" - The tribal court of the Blackfeet Tribe.
"Tribe" - The Blackfeet Tribe.

CHAPTER 3

FAMILY COURT SYSTEM

Section 1. Health. Education and Social Services Committee

The Health, Education and Social Services Committee of the Blackfeet Tribal Business Council is authorized to:

Determine the qualifications and job descriptions of all those employed in the family court system, provided that the qualifications and job descriptions of the Family Court Judge, Manager/Coordinator, and Presenting Officer shall be determined in cooperation with the Law and Order Committee.
Make recommendations to the Blackfeet Tribal Business Council and the Personnel Committee on personnel matters of the Family Court System.
Offer direction on matters of policy and the interpretations of this code.
Make recommendations to the Blackfeet Tribal Business Council on the budget or budget amendments of any component of the Family Court System.
Consider any grant proposal developed by a component of the Family Court System and recommend its approval to the Blackfeet Tribal Business Council.
Consider any proposed change or addition to this code, and recommend the enactment of appropriate changes or additions to the Blackfeet Tribal Business Council.
Provided that, the Family Court shall be primarily under the Law and Order Committee. The Law and Order Committee shall inform the HESS Committee of any action taken, affecting the Family Court.

Section 2. Family Court

Establishment. There is hereby established for the Blackfeet Tribe of the Blackfeet Indian Reservation, a court to be known as the Family Court. The Law and Order Committee with the consent of the Blackfeet Tribal Business Council, shall appoint an applicant to serve as Family Court Judge for a period of one (1) year to four (4) years. In the absence or disqualification of the appointed judge, the Family Court Administrator or any of the other judges of the Blackfeet Tribal Court may serve as judge in the Family Court until such time as another judge may be appointed.
Jurisdiction of the Family Court; Except as provided in subsection (1) and (2) the Court has exclusive original jurisdiction on all proceedings under the Family Court Act in which situations arise from family matters occurring within the external boundaries of the Blackfeet Reservation to include, divorce, emancipation, guardianships, paternity, termination of parental rights, child, domestic, and elder abuse/violence. To provide for the welfare, care and protection of the children and families on the Blackfeet Reservation. To take such actions as may be necessary and feasible to prevent the abuse, neglect, or abandonment of family members. To provide a continuum of services for families from prevention to residential treatment, with emphasis whenever possible on prevention, early intervention and community-based alternatives. The jurisdiction of the family court shall be civil in nature and shall include the right to issue all orders necessary to insure the safety of the family, children, and incompetents within exterior boundaries of the Blackfeet Reservation, as well as others who have been declared to be wards of the family court. The Family court shall also have the power to enforce subpoenas and orders of restriction, fines, contempt, confinement and other orders as appropriate.
1. The Blackfeet Tribal Court shall have concurrent jurisdiction with the Family court over all traffic or fish and game law violations committed by youths prior to having become 18 years of age.
2. If, during the pendency of a criminal or quasi-criminal proceeding in the Tribal Court, including an arraignment, it shall be ascertained that the person charged was less than 18 years of age at the time of committing the alleged offense, that court shall transfer the case to the Family Court, together with all related documents. The Family Court shall then proceed as provided in this Code.
3. Children residing within the exterior boundaries of the reservation, for whatever reason, in the home of an enrolled member of the tribe or other Indians, as defined in this code, as long as the parents, guardians, or custodians have consented to the jurisdiction of the family court. Such consent, once given, may be revoked only with permission of the family court and incompetent persons residing or domiciled with the exterior boundaries of the reservation.
Jurisdiction over Extended Family. Where the family court asserts jurisdiction over a person under this code, the court shall also have jurisdiction over the person's extended family whenever the court deems it appropriate.
Retention of jurisdiction. Once the Family Court obtains jurisdiction over family member or a youth, the court retains jurisdiction over children and their extended families who leave the exterior boundaries of the reservation, unless terminated by the court or by mandatory termination in the following cases:
1. At the time the proceedings are transferred to the Blackfeet Tribal Court;
2. At the time the youth is discharged by the Family Court; and
3. In any event, at the time the youth reaches the age of 21 years.
Transfer to Other Courts. The family court may apply the policies of the Indian Child Welfare Act, 25 U.S.C. 1901-1963, where they do not conflict with the provisions of this code. The procedures for state courts in the Indian Child Welfare Act shall not be binding upon the family court unless specifically provided for in this code. Exercise of jurisdiction over a family member on probation, under protective supervision, or other continuing jurisdiction of the court, may be transferred by the Family Court, if the receiving court consents and in fact has proper jurisdiction over the matter. In any case involving an Indian child from another Tribe, the Family Court Judge shall inquire of the child's Tribe whether it wishes to assume jurisdiction of the case. When the interests of justice can best be served by an order of the Family Court, proceedings under this chapter may be waived and any juvenile fifteen (15) years of age or more, may be tried in the Blackfeet Tribal Court.
Transfer to Tribal or Federal Court. After a petition has been filed alleging a criminal act has been committed, the court may, upon motion of the Presenting Officer, before hearing the petition on its merits, transfer the matter of prosecution to the Tribal or Federal Court if:
1. The individual charged was 12 years of age or more at the time of the conduct alleged to be unlawful and the act would constitute sexual intercourse without consent, deliberate homicide, mitigated deliberate homicide, or the attempt, of either deliberate or mitigated deliberate homicide if the act had been committed by an adult; or
2. The individual charged was 16 years of age or more at the time of the conduct alleged to be unlawful and the unlawful act is one or more of the following:
  1. negligent homicide
  2. arson
  3. aggravated or felony assault
  4. robbery
  5. burglary or aggravated burglary
  6. aggravated kidnapping
  7. possession of explosives
  8. criminal sale of dangerous drugs
3. Attempt, of any of the acts enumerated in subsections (2)(a) through (2)(h);
4. A hearing on whether the transfer should be made is held in conformity with the rules on a hearing on a petition alleging a criminal act has been committed, except that the hearing will be conducted by the Family Court without a jury;
  1. notice in writing of the time, place, and purpose of the hearing is given to the individual, if a youth, his/her counsel, parents, guardian, or custodian at least 10 days before the hearing; and
  2. the court finds upon the hearing of all relevant evidence that there is probable cause to believe that:
    1. the individual committed the act alleged, or if a youth committed the delinquent act alleged;
    2. the seriousness of the offense and the protection of the Blackfeet Community require treatment of the individual or youth beyond that afforded by the Family Court facilities; and
    3. the alleged offense was committed in an aggressive, violent, or premeditated manner.
5. In transferring the matter of prosecution to the Tribal or Federal Court, the court may also consider the following factors:
  1. the sophistication and maturity of the youth, determined by consideration of the home, environmental situation, and emotional attitude and pattern of living;
  2. the record and previous history of the individual, including previous contacts with the Family Court, law enforcement agencies, youth courts in other jurisdictions, prior periods of probation, and prior commitments to institutions. However, lack of a prior history with the courts will not of itself be grounds for denying the transfer.
6. The Family court shall grant the motion to transfer if the youth was 16 years old or older at the time of the conduct alleged to be unlawful and the unlawful act would constitute deliberate homicide, mitigated deliberate homicide, or the attempt of either deliberate or mitigated deliberate homicide if the act had been committed by an adult.
7. Upon transfer to Tribal or Federal court, the Judge shall make written findings of the reasons why the jurisdiction of the family court was waived and the case transferred.
8. The transfer terminates the jurisdiction of the Family Court over the individual with respect to the acts alleged in the petition. An individual may not be prosecuted in the Tribal or Federal Court for a criminal offense originally subject to the jurisdiction of the Family Court unless the case has been transferred as provided in this section.
9. Upon order of the Family Court transferring the case to the Tribal or Federal Court, the prosecuting attorney shall file the information against the individual without unreasonable delay.
10. Any offense not enumerated in subsection (1) that arises during the commission of a crime enumerated in subsection (1) may be:
  1. tried in Family Court;
  2. transferred to Tribal or Federal Court with an offense enumerated in subsection (1), upon motion of the prosecuting attorney and order of the Family Court Judge.
11. A youth whose case is transferred to Tribal or Federal Court may not be detained or otherwise placed in a jail or other adult detention facility before final disposition of his/her case unless:
  1. alternative facilities do not provide adequate security; and;
  2. the youth is kept in an area that provides physical, as well as sight and sound separation from adults accused or convicted of criminal offenses.
Transfer from Other Courts. The Blackfeet Family Court may accept or decline, under the procedures set forth in this code, transfers of child welfare cases from other federal, state, or tribal courts.
Procedures for Transfer from State Court.
1. Receipt of Notice: The Blackfeet tribal agent for service of notice of state court child custody proceedings, as defined by the Indian Child Welfare Act, shall be the tribal social service department.
2. Investigation and pre-transfer report by the court counselor. The tribal social services department shall conduct an investigation and file a written report with the family court within five (5) days of receipt of recommendation from the court.
3. Recommendations for transfer or intervention: The court shall make written recommendations to the tribal attorney on whether or not the Blackfeet Tribe should petition for transfer from or intervene in state court.
4. Petition for transfer: The Blackfeet Tribal petition for transfer shall be filed by the tribal attorney within five (5) days of receipt of recommendations from the court.
5. Intervention in State Court proceedings: The tribe may intervene in state court child custody proceedings, as defined by the Indian Child Welfare Act, at any point in the proceedings, and the tribal attorney or selected representatives shall file a motion to intervene within five (5) days of receipt of recommendation from the court.
6. Acceptance of Transfer: The Blackfeet Family Court will not accept a transfer from state court unless:
  1. a parent or Indian custodian's petition to state court for transfer is granted, or;
  2. the tribe's petition to state court for transfer is granted, or;
  3. the tribal social services department's pre transfer report recommends the acceptance of transfer, and;
  4. the tribal attorney recommends acceptance.
Powers and Duties Concerning Adjudication of Minors. No adjudication upon the status of any child in the jurisdiction of the Family Court shall be deemed criminal or be deemed a conviction of a crime, unless the Family Court refers the matter to the adult tribal court. The disposition of child's case or the evidence given shall not be admissible as evidence against the child in any proceeding in another court.
Court Orders of Other Tribal Courts. Court orders of other tribal courts involving children over whom the family court could take jurisdiction shall be recognized by the family court after the court has determined:
1. that the other tribal court exercised proper subject matter and personal jurisdiction over the parties, and;
2. due process was accorded to all interested parties participating in the other tribal court proceedings.
Cooperation with Other Agencies. The Family Court is authorized to cooperate fully with any federal, state, tribal, public or private agency, to participate in any diversion, rehabilitation or training programs and to receive grants to carry out the purposes of this Code with the consent of the Blackfeet Tribal Business Council.
1. The Family Court shall until such social services as may be furnished by any tribal, federal, private, or state agency as social workers.
2. The Family Court may negotiate contracts with tribal, federal or state agencies and/or departments on behalf of the tribal council for the care and placement of children before the family court subject to the approval of the tribal council before the expenditure of any tribal funds.
3. All judges will be required to have 40 hours of training in the area of family court law including child abuse/neglect within three months of appointment or their privileges to practice in Family Court will be suspended.
Guardian Ad Litem for Minors. The Family Court, in any proceeding authorized by this Code, may appoint, for the purposes of the proceeding, a guardian ad litem for a minor where the court finds that the minor is alleged to be neglected or abused and does not have a natural or adoptive parent, guardian or custodian, willing and able to exercise effective guardianship or where a conflict exists between the parent and child or children provided that guardian ad litem shall not be an employee of the Family Court System. The primary responsibility is to guide the child and the child's family through investigative and court processes, protect the child's emotional well-being and best interests and identify and provide appropriate advocacy services for the child and the family.
Immunity from Liability-Persons Reporting. Any person participating in good faith in the making of a report or in a judicial proceeding held pursuant to this Code, any person taking color photographs or x-rays, or placing in temporary custody a child pursuant to this Code or otherwise performing his/her duties or acting pursuant to this article shall be immune from any liability, civil or criminal, that otherwise might result by reason of such reporting. For the purpose of any proceedings, civil or criminal, the good faith of any person reporting child abuse, any person taking color photographs or x-rays, and any person who has legal authority to place a child in protective custody shall be presumed.
Confidentiality of Records. As provided for in Chapter 20 of the Blackfeet Family Court Code.
Right to Counsel. At his/her first appearance before the court, the individual or the child and his/her parent(s), guardian, or other legal custodian shall be fully advised by the court of their legal rights, including the right to be represented by counsel, at his/her own expense, at every stage of the proceedings.
Court Records. A record of all hearings under this code shall be made and preserved.
Expungement of Juvenile Records. As provided for in Chapter 20 of the Blackfeet Family Court Code.

Section 3. Family Court Judge.

The Family Court shall consist of one or more judges, one of whom shall be designated as Chief Judge, and the others as associate judges. Judge(s) shall be appointed by the Tribal Business Council and the Law and Order Committee. Their salary may be fixed and paid by the Executive Director of the Family Court from Grant funds.

Duties and Powers. In carrying out the duties and powers specifically enumerated in the family court code, judges of the family court shall have the same duties and powers as judges(s) of the tribal court, including, but not limited to, the contempt power, to power to issue arrest or custody warrants, and the power to issue search warrants.
Disqualification. The rules on disqualification or disability of a family court judge shall be the same as those rules that govern tribal court judge(s).

Section 4. Family Court Manager/Coordinator.

The Blackfeet Family Court shall appoint a Family Court Manager/Coordinator to carry out the duties and responsibilities set forth in this code.

Duties. The,Blackfeet Family Court Manager/Coordinator shall be responsible for overseeing the day to day operations of the court and the following:
1. Supervision of all family court members with the exception of the Family Court Judge(s); and
2. Financial management of the Blackfeet Family Court, including preparation of the court budget; and
3. Maintaining Family Court security, including juror and witness management; and
4. Releasing family court information as appropriate to the media and to the public; and
5. Coordinate with the Blackfeet Family Court Chief Judge in order to operate' an effective and efficient Blackfeet Family Court system; and
6. Coordinate with all personnel of the Blackfeet Family Court and all applicable agencies to develop programs of intervention and prevention for members of the Blackfeet Community; and
7. The Blackfeet Family Court Manager/Coordinator shall perform the duties of any of the Blackfeet Family Court personnel when needed.

Section 5. Family Court Clerk/Reporter.

The Blackfeet Family Court shall appoint Family Court Clerk/Reporter(s) to carry out the duties and responsibilities set forth in this code.

Duties. The Family Court Clerk/Reporter shall be responsible for the day to day paperwork incidental to the Family Court Operations and the following:
1. Maintaining up to date records of all Family Court proceedings; and
2. Tape recording of all Family Court proceedings; and
3. Swearing in of all witnesses testifying in the Blackfeet Family Court; and
4. All other such duties as may be assigned by the Blackfeet Family Court Judge(s) or Blackfeet Family Court Manager/Coordinator.

Section 6. Family Court Presenting Officer.

The court shall appoint Family Court Presenter(s) to carry out the duties and responsibilities set forth in this code. The chief judge shall certify annually to the tribal council the number of qualified presenter(s) needed to carry out the purpose of this code.

Duties. The Family Court Presenting Officer, may file petitions, write summons or recommendations to the Family Court Judge, set up hearings and in general assure that the Family Court takes appropriate action on every case brought before it.
1. The Presenting Officer may make home visits and write family evaluations, or may refer these matters to Tribal, State or Bureau of Indian Affairs Social Workers.
2. The Presenting Officer shall perform other duties as assigned by the Family Court Judge or the HESS Committee.
3. The Presenting Officer shall explain this law and procedures under this law to members of the public.
4. The Presenting Officer shall be required to have 40 hours of training in Family Court matters within 3 months of the enactment of this Code.
5. If a child has been removed from the home an Initial Placement Hearing shall take place no later than the second court working day following the removal.

Section 7. Juvenile Probation Officer(s).

The court shall appoint Family Court juvenile probation officer(s) to carry out the duties and responsibilities set forth in this code. The chief judge of the family court shall certify to the tribal council the number of qualified juvenile probation officer(s) needed to carry out this code. The juvenile probation officer(s) must have an educational background and/or prior experience in the field of delivering social services to youth. The juvenile probation officer(s) shall identify and develop resources on the reservation, in conjunction with the juvenile court and the tribal council, to enhance each tribal child's potential as a viable member of the tribal community.

Duties:
1. Make investigations as provided in this code or as directed by the court;
2. Make reports to the court as provided in this code or as directed by the family court;
3. Conduct informal adjustments;
4. Provide counseling services;
5. Utilize the "balanced approach to probation".
6. Perform such other duties in connection with the care, custody or transportation of children as the court may require.
Prohibited Duties: The juvenile probation officer(s) shall not be employed as or be required to perform the duties of a Family Court presenting officer or law enforcement official.
Reports. Whenever the court receives information from any agency or person, based upon reasonable grounds, that a youth being subject to a court order or consent order, has violated the terms thereof, the Family Court Probation Officer shall make a preliminary inquiry into the matter.
1. The probation officer may:
  1. require the presence of any person relevant to the inquiry;
  2. request subpoenas from the Family Court Judge to accomplish this purpose;
  3. require investigation of the matter by any law enforcement agency or any other appropriate agency.
2. If the probation officer determines that the facts indicate a probation violation, the probation officer shall immediately conduct a preliminary inquiry and shall:
  1. Once relevant information is secured, the Family Court probation Officer shall:
    1. determine whether the interest of the Blackfeet Community or the youth requires that further action be taken;
    2. terminate the inquiry upon the determination that no further action be taken; and
    3. release the youth immediately upon the determination that the filing of a probation revocation is not authorized.
3. The Family Court Probation Officer upon determining that further action is required may:
4. The Presenting Officer may apply to the Family Court for permission to file a petition charging the youth with violation of probation. This application must be supported by such evidence as the Family Court may require. If it appears that there is probable cause to believe that the allegations of the petition are true, the Family Court shall grant leave to file the petition.
5. A petition charging a youth held in detention must be filed within seven (7) working days from the date the youth was first taken into custody or petition shall be dismissed and the youth released unless good cause is shown to further detain such youth.
6. If no petition is filed under this section, the complainant and the victim, if any, shall be informed by the probation officer of the action and the reasons therefor and shall be advised of the right to submit the matter to the Family Court Presenting Officer for review. The Family Court Presenting Officer, upon receiving a request for review, shall consider the facts, consult with the probation officer, and make the final decision as to whether a petition shall be filed.
Confidentiality of Records. As provided for in Chapter 20 of the Blackfeet Family Court Code.

Section 8. Adult Probation Officer(s).

The Court shall appoint Family Court Adult Probation Officer(s) to carry out the duties and responsibilities set forth in this code. The Chief Judge of the Family Court shall certify to the Tribal Council the number of qualified Adult Probation Officer(s) needed to carry out this code. The Adult Probation Officer(s) must have an educational background and/or prior experience in the field of delivering social services. The Adult Probation Officer(s) in conjunction with the other members of the Family Court shall identify and develop resources on the reservation to enhance each tribal members potential as a viable member of the Blackfeet Community.

Duties:
1. Make investigations as provided for in this code or as directed by the Family Court;
2. Make reports to the Family court as provided for in this code or as directed by the Family Court;
3. Conduct informal adjustments;
4. Provide counseling services;
5. Utilize the "balanced approach to probation".
6. Perform such other duties in connection with the care, custody or transportation of clients as the court may require.
Prohibited Duties: The Adult Probation Officer(s) shall not be employed as or be required to perform the duties of a Family Court Presenting Officer or Law Enforcement Officer.
Violation of Family Court Order: Whenever the Family Court receives information from any agency or person, based upon reasonable grounds, that an individual being subject to a court order or consent order, has violated the terms thereof, The Family Court Probation Officer(s) shall make a preliminary inquiry into the matter.
1. The Adult Probation Officer(s) may:
  1. require the presence of any person relevant to the inquiry;
  2. request subpoenas from the Family Court Judge to accomplish this purpose;
  3. require investigation of the matter by any law enforcement or other appropriate agency.
2. If the Adult Probation Officer determines that the facts indicate a probation violation, the probation officer shall immediately conduct a Preliminary inquiry and shall determine whether the interest of the Blackfeet Community or the individual requires that further action be taken. Upon determining that further action is required, the probation Officer(s) may:
  1. provide counseling, refer the client to another agency providing appropriate services, or take any other action or make any informal adjustment that does not involve probation or jail.
  2. Provide for treatment or adjustment involving probation provided such treatment or adjustment is voluntarily accepted by the individual, and provided further that said matter is referred immediately to the Family Court Presenting Officer for review and that the probation officer proceeds no further unless authorized by the presenting officer; or
  3. refer the matter to the Family Court Presenting Officer for filing a petition charging the individual to be in violation of Family Court Probation.
3. The Presenting Officer may apply to the Family Court for permission to file a petition charging the individual with violation of probation. This application must be supported by such evidence as the Family Court may require. If it appears that there is probable cause to believe that allegations of the petition are true, the Family Court shall grant leave to file the petition.
4. If no petition is filed under this section, the complainant and the victim, if any, shall be informed by the probation officer of the action and the reasons therefor and shall be advised of the right to submit the matter to the Family Court Presenting Officer for review. The Family Court Presenting Officer, upon receiving a request for review, shall consider the facts, consult with the probation officer, and make the final decision as to whether a petition shall be filed.

Section 9. Protective Service Workers.

The Family Court shall appoint protective service worker(s) to carry out the duties and responsibilities set forth in this code. The chief judge of the family court shall certify annually to the tribal council the number of qualified protection worker(s) needed to carry out the purpose of this code.

Powers and Duties: Protective Services Worker(s) shall be employed by the family court. The protective services worker(s) may cooperate with such state and community agencies as are necessary to achieve the purposes of this code. The family court may negotiate working agreements with other jurisdictions. Such agreements shall be subject to ratification by the tribal council or its designate.
A Protective Services Worker Shall:
1. Receive reports of neglected, abused or abandoned family members and be prepared to provide temporary foster care for such members on a twenty-four (25) hour basis, and;
2. Receive from any source, oral or written, information regarding a family member who may be in need of protective services.
3. Upon receipt of any report or information under paragraph (1) or (2) of this section, immediately:
  1. notify the appropriate law enforcement agency, and;
  2. make a prompt and thorough investigation which shall include a determination of the nature, extent, and cause of any condition which is contrary to the family member's best interest and the name, age, and condition of other family members in the home.
4. Take a child into temporary custody if there are reasonable grounds to believe that the child is suffering from illness or injury or is in immediate danger from the surroundings and this the removal is necessary. Law enforcement officials shall cooperate with social services personnel to remove a child from the custody of parents, guardian, or custodian when necessary.
5. After investigation, evaluate and assess the home environment of the child or children in the same home and the risk to such children if they continue to be subjected to the existing home environment, and all other facts or matters found to be pertinent. They shall determine whether any of such children is a child in need of protective services.
6. Offer to the family of any child found to be a child in need of protective services appropriate services which may include, but shall not be limited to protective services.
7. Within thirty (30) days after a referral of a potential child in need of protective services, submit a written report of the investigation and evaluation to the Family Court Presenting Officer.
Confidentiality of Records. As provided for in Chapter 20 of the Blackfeet Family Court Code.

Section 10. Juvenile Department.

A Juvenile Department is established under the Family Court. The Department shall be responsible for enforcing the provisions of this Code.

Duties of the Juvenile Department and Juvenile Officer(s). These duties are established in the Blackfeet Tribal Personnel Department. Some duties are as follows:
1. Maintain continuous liaison and work with representatives of Federal and State Law Enforcement and Social Service agencies and Indian Health Service;
2. Coordinate activities of the Department with other programs serving the interests of children on the reservation to ensure that policy and intent of this Code is being pursued;
3. Maintain an updated knowledge of legal developments in the field of juvenile/child protection law.
4. Report to the Health, Education and Social Services Committee when necessary or when requested to do so, and;
5. Perform such other duties as are required by this Code, the Family Court Presenting Officer, or by the Law and Order Committee.
6. The Juvenile Officer(s) shall have completed Basic Police Academy training within one year of employment.
7. The Juvenile Department shall provide forty (40) hours of training in child abuse/neglect procedures, to the juvenile officer(s) within each fiscal year.
Temporary Investigative Authority-Intake Process:
1. Juvenile Officer(s) Intake Process;
  1. Receiving the report or referral.
  2. Possibly making collateral contacts and checking records.
  3. Exploring the appropriateness of the referral.
  4. Documenting the record.
Juvenile Officer(s) Initial Assessment:
1. Making initial contact with the child, determining if Bureau of Indian Affairs Criminal Investigator must be contacted.
  1. If determined that Bureau of Indian Affairs Criminal Investigator is to be contacted, proceed as directed by Criminal Investigator.
  2. If requested by Bureau of Indian Affairs Criminal Investigator, provide assistance.
  3. Preparing an initial risk assessment form.
2. Making subsequent assessment visits.
3. Assessing the damage to the child.
4. Assessing the potential for continuing risk to the child.
5. Evaluating the family indicators of abuse or neglect.
6. Determining if abuse or neglect exists and continuing the case as open.
7. Determining the need to invoke the authority of the family court.
8. Providing emergency services as needed.
9. Providing feedback to appropriate persons.
10. Documenting the record.
Rights of Youth Taken Into Custody - Questioning - Hearing for Initial Placement or Detention
1. When a youth is taken into custody for questioning upon a matter that could result in a petition alleging that the youth is either a delinquent youth or a youth in need of supervision, the following requirements must be met:
  1. The youth must be advised of his right against self-incrimination and his right to counsel;
  2. The youth may waive these rights under the following situations;
    1. When the youth is 16 years of age or older, the youth may make an effective waiver;
    2. when the youth is under the age of 16 years and the youth and a parent or guardian agree, they may make an effective waiver, and
    3. when the youth is under the age of 16 years and the youth and his parent or guardian do not agree, the youth may make an effective waiver only with advise of counsel.
  3. The investigating officer, probation officer, or person assigned to give notice shall immediately notify the parents, guardian, or legal custodian of the youth that the youth has been taken into custody, the reasons for taking the youth into custody, where the youth is being held, and serve a Summons for a 72 Hour Show Cause Hearing. If the parents, guardian, or legal custodian cannot be found through diligent efforts, a close relative or adult friend must be notified.
2. Unless a youth has been released, an initial placement hearing must be held within 72 hours after the youth is taken into custody, excluding weekends and legal holidays, to determine whether there is probable cause to believe that the youth is a delinquent youth or a youth in need of supervision.
3. The Initial Placement Hearing required under subsection (2) may be held by the Family Court Judge having jurisdiction in the case.
4. At the Initial Placement Hearing, the youth must be informed of his constitutional rights and his rights under this chapter.
5. A parent, guardian, or legal custodian of the youth may be held in contempt of court for failing to be present at or to participate in the Initial Placement Hearing unless he;
  1. cannot be located through diligent efforts of the investigating officer; or
  2. is excused by the court for good cause.
6. At the Initial Placement Hearing, a guardian ad litem may be appointed.
7. If it is determined that there is probable cause to believe the youth is a delinquent you or is a youth in need of supervision, the Family Court Judge shall determine whether the youth should be retained in custody.
8. If probable cause is not found or if an Initial Placement hearing is not held with the time specified, the youth must be immediately released from custody.
Criteria for Placement of a Youth in a Secure Detention Facility or a Shelter.
1. A youth may not be placed in a secure detention facility unless:
  1. the youth has allegedly committed an act that if committed by an adult would constitute a criminal offense and the alleged offense is one specified in the Blackfeet Tribal Law and Order Code.
  2. The youth is alleged to be a delinquent youth and:
    1. has escaped from a correctional facility or secure detention facility;
    2. has violated a valid Family Court Order or an aftercare agreement;
    3. detention is required to protect persons or property;
    4. has pending Family Court or administrative action or is awaiting a transfer to another jurisdiction and may abscond or be removed from the jurisdiction of the court;
    5. there are not adequate assurances that the youth will appear for court when required; or
    6. the youth meets additional criteria for secure detention established by the Family Court; or
  3. has been adjudicated delinquent and awaiting final disposition of the case.
2. A youth may not be placed in a shelter care facility unless;
  1. the youth and family need shelter care to address their problematic situation when it is not possible for the youth to remain at home;
  2. the youth needs to be protected from physical or emotional harm;
  3. the youth needs to be deterred or prevented from immediate repetition of his troubling behavior;
  4. shelter care is necessary to assess the youth and his environment;
  5. shelter care is necessary to provide adequate time for case planning and disposition; or
  6. shelter care is necessary to intervene in a crisis situation and provide intensive services or attention that might alleviate the problem and reunite the family.
Confidentiality of Records. As provided for in Chapter 20 of the Blackfeet Family Court Code.

Section 11. White Buffalo Home.

The White Buffalo Home shall serve as the Emergency Receiving Home for the Reservation.

Organization. Within one year from the approval of this code, the Board of Directors of the White Buffalo Home shall examine the organization format presently in use, determine whether that format best serves the interests of the White Buffalo Home, and recommend appropriate changes if necessary, to the HESS Committee.
Policies and Procedures. The Board of Directors of the White Buffalo Home shall design policies and procedures to meet appropriate license standards and funding requirements.
Administration of White Buffalo Home. The White Buffalo Home shall be administered according to the procedures authorized by the Blackfeet Tribal Business Council.
Payment for Care in White Buffalo Home. The White Buffalo Home shall bill the Montana State Department of Family Services or the Bureau of Indian Affairs as appropriate whenever the child is eligible for either funding source. The White Buffalo Home may arrange billing procedures with these agencies. If the child is not eligible for care from either of these agencies the parent or guardian shall be responsible for payment.
Relationships with Social Service Agencies. The White Buffalo Home shall cooperate with Social Service agencies, according to agreements with those agencies as approved by the HESS Committee and Blackfeet Tribal Business Council, as directed by the Family Court Judge.

Section 12. Child Protection Team.

Establishment. A Child Protection Team is established. The members of the Team shall include a representative from each of the following:
1. Indian Health Service
2. BIA Social Services Department, and
3. BIA Law Enforcement, Blackfeet Indian Agency
4. Montana State Department of Family Services
5. Family Court Juvenile Department
6. Family Court Presenting officer
7. Tribal Child Protection Worker
8. Residential Child Care representatives (White Buffalo Home, Blackfeet Boarding Dorm, and the Nurturing Center)
9. Education representatives (schools including head start)
10. Family Court Probation Officer(s)
Vote. Each Agency shall have one (1) vote whenever a vote shall be necessary.
Duty. The Team, through the Presenting Officer, shall advise the Family Court by assessing the needs of, formulating and monitoring a treatment plan for and coordinating services to children and their families.
Referrals. Children may be referred to the Team by the Family Court Juvenile Department, BIA Law Enforcement Officials, BIA Social Services and Montana State Department of Family Services.
Procedures. The Team shall decide upon meeting procedures and the place of meetings, and is encouraged to rotate the position of facilitator on a quarterly basis. Procedures shall be written and shall be approved by the Health, Education and Social Services (HESS) Committee of the Blackfeet Tribal Business Council.
Records. Records developed by the Team shall be kept in the file of the child, maintained by the Family Court.
Confidentiality. With the understanding that any particular case may be discussed with the Health, Education and Social Services Committee in order to illustrate particular problems, if any tribal employee or Family Court member is found by the HESS Committee to have violated the child or family's right to have matters considered by the Team kept confidential, the Chairman of the HESS Committee shall direct the employee's program director or the Personnel Director to take disciplinary action as provided for in Section 9 of the Blackfeet Tribal Personnel Policies and Procedures. Such disciplinary action may not be taken without the direction of the HESS Committee. If any Team member who is not a Tribal Employee is found by the HESS Committee to have violated the child or family's right to have matters considered by the Team kept confidential, the Chairman of the HESS Committee shall report the occurrence to the Team member's supervisor. Provided, however, that all team members may share information gathered during investigations, home visits, interviews, and medical exams with other team members on a need-to-know basis to facilitate team discussion and short/long term case planning and as provided for in Chapter 20 of the Blackfeet Family Court Code.
Reports. The Team shall report quarterly to the HESS Committee in writing, stating the number of cases handled and the disposition of each case.
Relationship to BIA and IHS Directive. The directive of the Bureau of Indian Affairs and the Indian Health Service to establish child protection teams is recognized and supported and the team shall report to these two agencies as required.

CHAPTER 4

MINOR IN NEED OF CARE AND STATUS OFFENDER

Section 1. Minor in Need of Care.

A minor in need of care, is an Indian under the age of eighteen (18) who:

Has no parent, guardian or custodian available and willing to care for him/her; or
Has suffered or is likely to suffer an injury inflicted upon him/her by other than accidental means which causes or created a substantial risk of death, disfigurement, or impairment of bodily functions, or intellectual or psychological functioning; or
Has failed to thrive and has not been provided with adequate food, clothing, shelter, medical care, education or supervision by a parent, guardian or custodian necessary for health and well-being; or
Has been or is likely to be physically, sexually or mentally abused; or
Has committed delinquent acts or status offenses. A status offense is the non-criminal behavior of a minor which violates tribal laws that apply only to minors or commits any of the acts of a delinquent youth but whom the Juvenile Court, in its discretion, chooses to regard as a minor in need of supervision. Status offenses are further listed and defined at the end of this chapter.

Section 2. Petition.

A petition may be filed by the Family Court Presenting Officer from reports received and a knowledge of the facts alleged. The petition shall be signed by the Presenting Officer. The petition shall contain:

A reference to the specific statutory provisions of this code which gives the Family Court jurisdiction of the proceedings; and
The name, age, and address of the minor who is the subject of the petition, if known; and
A plain, concise and sworn statement of the facts upon which the allegations are based, including the date, time, and location at which the alleged facts occurred.

Section 3. Order of Protective Custody.

The Family Court may enter an order directing that a minor be taken into protective custody if the Family Court finds there is probable cause to believe the minor is a "minor in need of care".

Section 4. Protective Custody: Grounds.

A minor may be taken into protective custody by a BIA Law Enforcement Officer, Juvenile/Child Protection Officer, or any commissioned officer of the Tribe, DFS Social Worker or BIA Caseworker; if:

The officer or caseworker has reasonable grounds to believe that the minor is a "minor in need of care", as defined in this code and the minor is in immediate danger from his/her surroundings and that his/her removal is necessary or he/she is about to be removed from the jurisdiction of the court for the purpose of evading proceedings under this code or if removal is necessary to preserve evidence in a civil or criminal investigation; or
An order pursuant to this Code has been issued for the minor.