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Our state has had a long and unique relationship with Cherokee. The current NC Senate  Coat of Arms features two Native Americans. 

American Indians in North Carolina

The US Department of the Interior, through the BIA (Bureau of Indian Affairs), “provides services directly or through contracts, grants, or compacts to 566 Federally recognized tribes with a service population of about 1.9 million American Indian and Alaska Natives.” The BIA is essentially our US government interacting with the Indian tribal governments. “There were 122,110 American Indians located in the state of North Carolina when the 2010 US Census was conducted” according to the NC State Commission of Indian Affairs, which also provides links to NC Indian Tribe web sites

Indian Child Welfare Act: ICWA 

The federal government passed a law known as ICWA (the Indian Child Welfare Act of 1978), 25 U.S.C. §1902, to address cultural issues.  When Indian children were taken from their Indian parents or custodians because of abuse or neglect, they were often placed with non-Indian foster care families or adopted by non-Indian parents. ICWA supersedes North Carolina (or any state) laws concerning foster care and adoption. It applies to adoption cases, as well as cases of alleged abuse or neglect.

Federal Recognition of Tribes

ICWA is only applicable if the parent or parents are members of a federally recognized tribes, or they are eligible to become members.  Federal recognition means the tribe and US government have a working relationship between their governments. Surprisingly, only some tribes are federally recognized.  For instance, the Lumbee Indian tribe is not federally recognized. The only federally recognized Indian tribe in our state is the Eastern Band of Cherokee Indians.  North Carolina General Statute §71A-1 also designates residents in “Robeson, Richmond, and Sampson counties, who have heretofore been known as “Croatan Indians” or “Indians of Robeson County,” together with their descendants, shall hereafter be known and designated as “Cherokee Indians of Robeson County.” 

What Does ICWA Do?

When the ICWA laws apply, the state or the parents hoping to adopt a child of Indian heritage must formally notify the applicable tribe. Officials of the child’s tribe must receive formal notice of the case, at which point the tribe has the right to take jurisdiction of the case in tribal court.  Jurisdiction means the proper authority to accept a case, and to making a ruling in that case. After receiving formal notice, the tribe may also choose to simply be named as a party to the case, allowing them to participate in the trial taking place in state court. In an emergency, the state may take emergency jurisdiction over a child until the tribe can take jurisdiction of the case. This is similar to the laws concerning two different states competing for a case. Our North Carolina courts only act on an emergency basis when there is a court order from another state. 

If the case stays in a North Carolina court, an expert must testify in court to explain American Indian customs, beliefs and society. Because so few Americans are familiar with Indian culture, the knowledge given to the judge by the expert is intended to help the judge guard against bias from lack of familiarity with the child’s Indian background.  The ICWA law also requires the state to make “active efforts” to strengthen the family by remedy or rehabilitation of Indian parent(s), even before the situation deteriorates into a problem requiring the state to remove the child.  ICWA also provides that when a child needs to be placed in foster care, preferences shall be given to American Indian foster parents.  

Family Law in North Carolina

In some respects, the Eastern Band of Cherokee has statutes that are fairly similar to ours.  In fact, their family law statutes are numbered the same way so lawyers who are not Indians may more easily represent clients in those courts.  See their family laws about marriage and divorce in Chapter 50 of the Cherokee Code.  

Likewise, our courts address the family law matters of Indians. For example, NC General Statute 51 provides the requirements for a valid marriage, including one that is created “in accordance with any mode of solemnization recognized by any religious denomination, or federally or State recognized Indian Nation or Tribe.”  Our state has a domestic violence law that makes it a crime to falsely tell a law enforcement agency there is a domestic violence protective order “entered pursuant to this Chapter or by the courts of another state or Indian tribe remains.” 

Our Department of Social Services collaborated with the NC Commission of Indian Affairs, and created forms for Child Welfare Services to use.  For instance, one form is used to help social workers and other professionals explore a child’s Indian heritage. They also provide state data on Indian matters. While only one tribe is federally recognized by the federal government, our state recognizes several others.

Our state has dozens of laws that relate to Indians.  We even have ABC laws that intersect with the Eastern Band of Cherokee Indians. North Carolina also has a statute giving full faith and credit to  “a judgment, decree, or order signed by a judicial officer of the Eastern Band of Cherokee Indians and filed in the Cherokee Tribal Court.”  This means North Carolina will treat Cherokee court orders in the same way it treats North Carolina court orders. 

Amy Edwards & Associates, PLLC. This article is current as of 2014(c) 

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