Page 1 - 131LR1324(03)
STATE OF MAINE
_____
IN THE YEAR OF OUR LORD
TWO THOUSAND TWENTY-THREE
_____
S.P. 804 - L.D. 1970
An Act to Enact the Maine Indian Child Welfare Act
Emergency preamble. Whereas, acts and resolves of the Legislature do not
become effective until 90 days after adjournment unless enacted as emergencies; and
Whereas, this legislation provides essential protections for Indian children in
protective custody and guardianship actions; and
Whereas, in the judgment of the Legislature, these facts create an emergency within
the meaning of the Constitution of Maine and require the following legislation as
immediately necessary for the preservation of the public peace, health and safety; now,
therefore,
Be it enacted by the People of the State of Maine as follows:
Sec. 1. 18-C MRSA §5-213 is enacted to read:
§5-213. Indian Child Welfare Act of 1978 and Maine Indian Child Welfare Act
The federal Indian Child Welfare Act of 1978, 25 United States Code, Section 1901 et
seq. and the Maine Indian Child Welfare Act govern all proceedings under this Article that
pertain to an Indian child as defined in those Acts.
Sec. 2. 18-C MRSA §9-107, as enacted by PL 2017, c. 402, Pt. A, §2 and affected
by Pt. F, §1 and affected by PL 2019, c. 417, Pt. B, §14, is amended to read:
§9-107. Indian Child Welfare Act of 1978 and Maine Indian Child Welfare Act
The federal Indian Child Welfare Act of 1978, 25 United States Code, Title 25, Section
1901 et seq. governs and the Maine Indian Child Welfare Act govern all proceedings under
this Article that pertain to an Indian child as defined in that Act those Acts.
Sec. 3. 19-A MRSA §1658, sub-§2-A, ¶F, as enacted by PL 2021, c. 340, §2, is
amended to read:
F. The federal Indian Child Welfare Act of 1978, 25 United States Code, Title 25,
Section 1901 et seq., governs and the Maine Indian Child Welfare Act govern all
proceedings under this section that pertain to an Indian child as defined in that Act
those Acts.
APPROVED
JUNE 30, 2023
BY GOVERNOR
CHAPTER
359
PUBLIC LAW Page 2 - 131LR1324(03)
Sec. 4. 19-A MRSA §1734, sub-§1, as enacted by PL 1999, c. 486, §3 and affected
by §6, is amended to read:
1. Proceedings governed by federal Indian Child Welfare Act of 1978 or Maine
Indian Child Welfare Act. A child custody proceeding that pertains to an Indian child as
defined in the federal Indian Child Welfare Act of 1978, 25 United States Code, Section
1901 et seq., or the Maine Indian Child Welfare Act is not subject to this chapter to the
extent that it is governed by the Indian Child Welfare either Act.
Sec. 5. 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. Legislative finding and declaration of policy
1. Finding.
Indian tribe, as well as eligibility for membership or citizenship in an Indian tribe, as
determined by each Indian tribe is a political classification.
2. Declaration of policy.
recognition by the State that Indian tribes have a continuing and compelling governmental
interest in an Indian child whether or not the Indian 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 Indian child's tribal
culture and that is best able to assist the Indian 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. To the maximum extent possible, active efforts Page 3 - 131LR1324(03)
should be provided in a manner consistent with the prevailing social and cultural conditions
and way of life of the Indian child's tribe and should be conducted in partnership with the
Indian child and the Indian child's parents, extended family members, Indian custodians
and tribe. 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. Page 4 - 131LR1324(03)
4. Emergency proceeding.
involves the emergency removal or emergency placement of an Indian child, including
those pursuant to section 4034 or Title 18-C, Article 5. "Emergency proceeding" does not
include a court action involving an emergency award of custody of the Indian child to one
of the parents including, but not limited to, an emergency parental rights and
responsibilities order or a protection from abuse proceeding.
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 for or related to an Indian child:
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 in tribal court or 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 proceeding
involving an award of custody to one of the Indian child's parents, including, but not limited
to, a divorce proceeding, a parental rights and responsibilities proceeding, a judicial
separation proceeding, a protection from abuse proceeding or other domestic relations
proceeding.
10. Indian child's tribe.
Indian child is a member or citizen, or eligible for membership or citizenship. In cases in Page 5 - 131LR1324(03)
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 Page 6 - 131LR1324(03)
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 Page 7 - 131LR1324(03)
(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.
Indian child custody proceeding or emergency proceeding if the child were an Indian child,
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 appropriate
regional director of the United States Department of the Interior, Bureau of Indian
Affairs in like manner.
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 appropriate regional
director of the United States Department of the Interior, Bureau of Indian Affairs. Page 8 - 131LR1324(03)
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.
counsel in any Indian child custody proceeding or emergency 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.
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.
seeking to effect a foster care placement of, or termination of parental rights to, an Indian
child under chapter 1071, Title 18-C, Article 5 or 9 or Title 19-A, section 1658 shall satisfy
the court, in accordance with the standard of proof required by the governing statute, 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. Involuntary foster care placement. Involuntary 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. Involuntary termination of parental rights. Involuntary 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 Page 9 - 131LR1324(03)
language that the parent or Indian custodian understood. Consent given prior to, or within
10 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 by clear and convincing evidence
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 by clear and
convincing evidence that the action violated any provision of sections 3944 to 3946.
§3948. Placement of Indian children
1. Adoptive placements; preferences.
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 Page 10 - 131LR1324(03)
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.
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 Page 11 - 131LR1324(03)
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.
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 Page 12 - 131LR1324(03)
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 District Court or Probate Court, the court shall:
A. Make a finding on the record, supported by clear and convincing evidence, 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; and
C. At any court hearing during the emergency proceeding, determine whether there is
clear and convincing evidence demonstrating that the emergency removal or placement
remains necessary to prevent imminent physical damage or harm to the Indian child
and, if not, immediately terminate or ensure that the petitioning party immediately
terminates the emergency proceeding.
§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. Page 13 - 131LR1324(03)
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.
Sec. 6. 22 MRSA §4002, sub-§9-B, as amended by PL 2017, c. 411, §4, is further
amended to read:
9-B. Relative.
degree through parentage established under Title 19‑A, chapter 61 or any spouse of that
family member. "Relative" also includes the adoptive parent of the child's siblings. Page 14 - 131LR1324(03)
"Relative" includes, for an Indian child as defined by the federal Indian Child Welfare Act
of 1978, 25 United States Code, Section 1903, Subsection 4, or by the Maine Indian Child
Welfare Act, section 3943, subsection 8, an extended family member as defined by the law
or custom of the Indian child's tribe or, in the absence of such law or custom, an extended
family member as defined by the federal Indian Child Welfare Act of 1978, 25 United
States Code, Section 1903, Subsection 2 or the Maine Indian Child Welfare Act, section
3943, subsection 5.
Sec. 7. 22 MRSA §4008, sub-§2, ¶I, as amended by PL 2007, c. 140, §5, is further
amended to read:
I. The representative designated to provide child welfare services by the tribe of an
Indian child as defined by the federal Indian Child Welfare Act of 1978, 25 United
States Code, Section 1903 or the Maine Indian Child Welfare Act, section 3943,
subsections 8 and 10, or a representative designated to provide child welfare services
by an Indian tribe of Canada;
Sec. 8. 22 MRSA §4062, sub-§1, as amended by PL 1999, c. 392, §1, is further
amended by amending the first blocked paragraph to read:
Notwithstanding section 4061, subsection 3, any federally recognized Indian tribe in this
State or any Indian foster family home is eligible for benefits and reimbursement under any
state or federally funded program administered by the State for the benefit of Maine
children, including, but not limited to, children within the jurisdiction of the
Passamaquoddy Tribe or, Penobscot Indian Nation, Houlton Band of Maliseet Indians or
Mi'kmaq Nation under the federal Indian Child Welfare Act of 1978, 25 United States
Code, Section 1901, et seq. or the Maine Indian Child Welfare Act.
Sec. 9. 22 MRSA §8101, sub-§3-A, as enacted by PL 1999, c. 392, §5, is amended
to read:
3-A. Indian foster family home.
licensed, approved or specified by the Indian child's tribe where substitute parental care is
provided for an Indian child as defined in the federal Indian Child Welfare Act of 1978, 25
United States Code, Section 1901, et seq. or the Maine Indian Child Welfare Act, section
3943, subsection 8.
Sec. 10. 30 MRSA §6209-A, sub-§1, ¶D,
and affected by §13, is further amended to read:
D. Indian child custody proceedings to the extent authorized by applicable state and
federal law;
Sec. 11. 30 MRSA §6209-B, sub-§1, ¶D, as enacted by PL 1995, c. 388, §6 and
affected by §8, is amended to read:
D. Indian child custody proceedings to the extent authorized by applicable state and
federal law; and
Sec. 12. 30 MRSA §6209-C, sub-§1, ¶D, as enacted by PL 2009, c. 384, Pt. B, §1
and affected by §2, is amended to read:
D. Indian child custody proceedings to the extent authorized by applicable state and
federal law; and Page 15 - 131LR1324(03)
Sec. 13. Contingent effective date.
contingencies.
1. That section of this Act that amends the Maine Revised Statutes, Title 30, section
6209-A, subsection 1, paragraph D takes effect 120 days after adjournment of the First
Special Session of the 131st Legislature only if, within 90 days after adjournment of the
First Special Session of the 131st Legislature, the Secretary of State receives written
certification from the Joint Tribal Council of the Passamaquoddy Tribe that the tribe has
agreed to the provisions of this Act, copies of which must be submitted by the Secretary of
State to the Secretary of the Senate, the Clerk of the House and the Revisor of Statutes.
2. That section of this Act that amends the Maine Revised Statutes, Title 30, section
6209-B, subsection 1, paragraph D takes effect 120 days after adjournment of the First
Special Session of the 131st Legislature only if, within 90 days after adjournment of the
First Special Session of the 131st Legislature, the Secretary of State receives written
certification from the Governor and the Council of the Penobscot Nation that the nation has
agreed to the provisions of this Act, copies of which must be submitted by the Secretary of
State to the Secretary of the Senate, the Clerk of the House and the Revisor of Statutes.
3. That section of this Act that amends the Maine Revised Statutes, Title 30, section
6209-C, subsection 1, paragraph D takes effect 120 days after adjournment of the First
Special Session of the 131st Legislature only if, within 90 days after adjournment of the
First Special Session of the 131st Legislature, the Secretary of State receives written
certification from the Houlton Band Council of the Houlton Band of Maliseet Indians that
the band has agreed to the provisions of this Act, copies of which must be submitted by the
Secretary of State to the Secretary of the Senate, the Clerk of the House and the Revisor of
Statutes. Upon such written certification by the Houlton Band Council of the Houlton Band
of Maliseet Indians, each section of this Act regarding or affecting the Houlton Band of
Maliseet Indians and its tribal members and lands constitutes a jurisdictional agreement for
purposes of the federal Maine Indian Claims Settlement Act of 1980, Public Law 96-420,
Section 6(e)(2).
Emergency clause.
takes effect when approved, except as otherwise indicated.