DHS removing Indigenous children from their homes on tribal land involves interactions between child welfare agencies, tribal governments, and federal law. In Oklahoma, questions about whether the Department of Human Services (DHS) can intervene in cases involving Indigenous children are particularly important. Understanding the limits of DHS authority and the protections in place is crucial when navigating custody matters on tribal land.

The Indian Child Welfare Act and Its Protections

The Indian Child Welfare Act (ICWA) is a federal law enacted in 1978 to address the alarming rates at which Indigenous children were being removed from their families and placed in non-Native foster or adoptive homes. Key provisions of ICWA include:

• Tribal Jurisdiction: In cases involving Indigenous children living on tribal land, the tribe has exclusive jurisdiction over child custody matters. State agencies, including DHS, generally cannot remove children from tribal land without the tribe’s involvement or consent.
• Placement Preferences: ICWA establishes a preference for placing Indigenous children with family members, other members of the tribe, or other Indigenous families to maintain cultural and familial ties.
• Active Efforts Requirement: State agencies must make active efforts to provide services to prevent the removal of an Indigenous child from their family before seeking placement outside the home.

ICWA aims to preserve tribes and protect tribal sovereignty through strict guidelines for the removal and placement of Indigenous children.

For information on other child custody topics, check out our Claremore Child Custody Law Blog.

DHS Authority on Tribal Land

In most cases, DHS does not have jurisdiction to remove Indigenous children from their homes on tribal land. Tribal governments have legal authority to handle child welfare matters on their lands, including investigating abuse or neglect allegations and determining appropriate placements for children.

However, there are exceptions where DHS may become involved in cases involving Indigenous children:

1. When a Tribal Court Transfers Jurisdiction
   In some situations, tribal courts may choose to transfer jurisdiction to a state court, allowing DHS to handle the case. This is typically for cases tribes determine that state resources are better able to address the needs of the case
2. When the Child Lives Off Tribal Land
   If an Indigenous child resides off tribal land, DHS may have jurisdiction to intervene in child welfare cases. However, DHS must notify the child’s tribe of any proceedings, and give the tribe an opportunity to intervene.
3. In Emergency Situations
   In emergency situations, where a child is in immediate danger, DHS may intervene to ensure the child’s safety. However, after addressing the emergency, DHS must transfer jurisdiction to the appropriate tribal court.

Tribal sovereignty is a key principle in child welfare cases involving Indigenous children. Tribal nations are sovereign entities with the right to govern their internal affairs, including child custody matters. It’s important to work with a child custody attorney who has experience with tribal law.

Rogers County Tribal Attorneys

DHS removing Indigenous children from tribal land is heavily regulated by the Indian Child Welfare Act (ICWA) and tribal sovereignty. In most cases, DHS lacks the authority to intervene in child welfare cases on tribal land without tribal consent or involvement. The legal protections under ICWA are designed to preserve Indigenous families and communities, recognizing the importance of cultural identity and self-determination. If you are facing a case involving DHS and an Indigenous child, the Kania Law – Claremore Attorneys can help. Get a free and confidential consultation by calling 918.379.4872. Or, follow this link to ask a free online legal question.