A.
Short title. This code will be entitled "Children's Code."
B.
Purpose. Children are the Tribe's most vital and cherished treasure.
The Tribe's future depends on the health and well-being of its
children. Children have a sacred right to receive the care and guidance
necessary for their spiritual, emotional, mental, and physical development.
Feeling pride from their identity as Potawatomi will help them grow
into strong, healthy, responsible adult tribal members. The children's
code will be liberally interpreted and construed to fulfill the following
expressed purposes:
(1)
To provide for the welfare, care and protection of the children and
families within the jurisdiction of the Nottawaseppi Huron Band of
the Potawatomi (NHBP);
(2)
To preserve the unity of the family, only separating the child from
his or her parents when absolutely necessary;
(3)
To take such actions that will best serve the spiritual, emotional,
mental, and physical welfare of the child and the best interest of
the Tribe to prevent the abuse, neglect and abandonment of children;
(4)
To provide a continuum of services for children and their families
from prevention to residential treatment, with emphasis whenever possible
on prevention, early intervention and community-based alternatives;
(5)
To secure the rights of and ensure fairness to the children, parents,
guardians, custodians and other parties who come before the Court
under the provisions of this code;
(6)
To provide procedures for intervention in state court proceedings
regarding Indian children and for transfer of jurisdiction over Indian
children from state and other tribal courts to this Tribal Court;
(7)
To ensure compliance with all applicable federal laws and to provide
a reasonable means by which cross-jurisdictional judgments and orders
may be enforced with full faith and credit;
(8)
To recognize and acknowledge the tribal customs and traditions of
the Nottawaseppi Huron Band of the Potawatomi regarding child-rearing;
(9)
To preserve and strengthen the children's cultural ethnic identity
whenever possible and to protect the sovereignty of the Nottawaseppi
Huron Band of the Potawatomi.
(10)
To transfer appropriate cases to any traditional or alternative
dispute resolution body created by the Tribe.
C.
The Nottawaseppi Huron Band of the Potawatomi believes all children
deserve the following: a mother (gashe); a father (noos); identity
with the traditional way of life (mno bmadzewen); to learn and speak
their language (Bodewewadmi); to have a family (mezodan); know their
relatives (nwemagen); to know the traditional laws, customs, and ceremonies
of the people; a knowledge and understanding of the seven grandfather
teachings; Bwakawen (wisdom), Debanawen (love), Kejitwawenindowen
(respect), Wedasewen (bravery), Gwekwadzewen (honesty), Edbesendowen
(humility), and Debwewin (truth); and the ability to live according
to the practice of the traditional laws, customs, and ceremonies that
govern their people.
As used in this chapter, the following terms shall have the
meanings indicated:
The child has been abandoned under the following circumstances:
A parent of a child is unidentifiable or has had substantially
no contact with the child for twenty-eight (28) or more calendar days
and has not sought custody of the child during that period. For purposes
of this section, a parent is unidentifiable if the parent's name
and location cannot be ascertained after practical attempts have been
made to locate and identify the parent; or
A parent has left a child in the care of others, including a
legal custodian, for at least thirty (30) calendar days and has not
provided for support of the child for a period of at least six (6)
months. The failure to provide support and to communicate with a child
for a period of at least six (6) months will be presumptive evidence
of intent to abandon the child.
More than reasonable efforts and requires an energetic and
aggressive course of action to prevent the removal of a child or to
reunite a child with his/her family based upon the Tribe's cultural
norms and utilization of tribal resources. This means aggressive actions
that assist in alleviating the problems or issues that might lead
to or have led to the removal of the child from the family. Active
efforts include, but are not limited to:
Identifying and implementing appropriate services to help the
parents to overcome barriers to compliance with those services;
Identifying the community resources offering housing, financial,
and transportation assistance; providing in-home support; providing
information about those resources to the child's family, actively
offering assistance in accessing those resources;
Engaging the Indian child, child's parents, Tribe, extended
family members, and individual Indian caregivers through the utilization
of culturally appropriate services and in collaboration with the parent
or child's Indian Tribe and Indian social services agencies.
A person eighteen (18) years of age or older, or a person
under the age of eighteen (18) who has been emancipated by order of
a court of competent jurisdiction.
Incidents of abuse or neglect perpetrated upon a child which
demonstrates such recklessness to the health and well-being of children,
and the community's standards for the care of children, that
reunification efforts are deemed inappropriate and termination of
parental rights may be immediately sought by petition. Aggravated
circumstances will include the use of a weapon in an act of child
abuse, abandonment of a child, addiction at birth of child and/or
mother, conviction of homicide of spouse, parent, child, sibling,
live-in partner, or any other person who regularly resides in the
household, sexual abuse of a child or physical abuse which results
in permanent or potentially permanent injury to a child, the maiming
or death of a child.
The standard used by the NHBP Tribal Court to determine the
well-being of a child in a particular case, through the evaluation
of the following factors:
Physical, mental, emotional, spiritual, and familial needs of
the child;
Providing a stable, nurturing environment for the child;
Meeting the unique individual needs of the child; and
Any other factor considered by the NHBP Tribal Court to be relevant
to a particular child under this code.
Consecutive days of the year, including weekends and excluding
recognized tribal holidays: New Year's Day, Memorial Day, Independence
Day, Labor Day, Michigan Indian Day, Thanksgiving Day, Friday after
Thanksgiving, Federal Recognition Day, Christmas Eve Day, Christmas
Day, New Year's Eve.
A person under the age of eighteen (18) who has not been
emancipated by order of a court of competent jurisdiction.
Includes but is not limited to:
Any case in which:
The death of a child has occurred due to, or a child exhibits
evidence of, skin bruising, bleeding, malnutrition, failure to thrive,
burns, fractures of any bone, head or spinal injury, soft tissue swelling;
and
Such condition is not reasonably explainable as due to accident
or illness; or medically deemed not likely to be the result of an
accident or illness; and/or
A child has suffered physical, emotional, or developmental harm
inflicted by other than accidental means.
A child is or has been subjected to sexual assault, sexual molestation,
sexual exploitation, sexual contact, prostitution, or exposure to
other sexually inappropriate behavior of an adult in the presence
of the child.
A child is or may be placed at risk of sexual assault, molestation,
or sexually inappropriate contact, by prolonged or unrestricted contact
with a person who has been convicted of a crime of sexual misconduct.
The neglect of the child's basic needs, including but not
limited to the provision of food, clothing, shelter, medical care,
and education, to the degree that the child's development has
been or is likely to be significantly adversely affected, or in which
a child manifests physical or emotional harm as a direct result of
abuse or neglect.
Children left without proper supervision for prolonged periods
or in conditions or in a manner resulting in or likely to result in
physical harm to the child. The length of time depends on the age
and maturity of the child.
A child born to parents who are not married at the time of
birth.
Includes, but is not limited to, intentional or unintentional
negligent treatment or maltreatment of a child, by act or omission,
by any person, including one who is responsible for the child's
health, welfare and/or safety, under circumstances which indicate
that the child is at risk for physical, emotional or developmental
harm.
The United States Department of Interior's administrative
designation of Allegan, Barry, Branch, Calhoun, Kalamazoo, Kent, and
Ottawa Counties.
Includes any substance identified in the federal controlled
substance schedules (21 CFR 1308.11 through 1308.15) and synthetic
drugs designed to affect the body in a manner similar to those substances
listed in Tribal Code or federal schedules of controlled substances.
The Court of the Nottawaseppi Huron Band of the Potawatomi
asserting jurisdiction over matters involving children.
Any action which obstructs the reasonable exercise of dominion
and control over the life of a child by that child's lawful custodian
or the willful disobedience of a court order regarding the placement
of a child.
The biological or adoptive parent(s) with legal and physical
custody of one or more children and with whom the child(ren) live(s)
most of the time.
A person other than a parent or guardian, to whom legal custody
of the child has been sanctioned by a court of competent jurisdiction
or a member of the child's extended family to whom temporary
custody has been transferred by such child's biological parent
in accordance with tribal custom.
Dominion and control over the daily life of a child conducted
in the best interests of the child.
See definition of "protected child determination."
See definition of "protected child."
An assault and/or a battery committed by a current or former
spouse, an intimate partner, an individual with whom the victim has
a child in common, or an individual with whom the victim has or has
had a dating relationship.
The usual and common residence of a person defined by a clear
intent to maintain residency continuously despite any periodic physical
absence from the home. The domicile of a child is presumed to be that
of the custodial parent, legal guardian or custodian.
A person who has reached the age of eighteen (18) and who
is the child's stepparent, stepsibling, niece or nephew, cousin
(no matter the biological degree of relations), or other kinship or
nonkinship relations (including non-Indian) recognized by the child
and/or family members as having a relationship with the child.
A general term referring to immediate family and/or extended
family. See definitions of "immediate family" and "extended family."
The same or similar acts as defined as domestic violence,
but are directed towards a family or household member instead of an
intimate partner. The dynamics of power and control may, or may not,
be present.
One of the following:
A man legally married to the mother of a child at any time from
a child's conception to the child's birth; or
The father listed on a child's birth certificate; or
A man who legally adopts a child; or
A man whose paternity has been established in one of the following
ways:
The man joins with the mother of the child and signs an affidavit
of parentage.
The man signs a declaration of paternity upon the birth of the
child or the man and the mother file a joint, written request for
a correction of the birth certificate to name the declarant man as
the child's father, and such a revised birth certificate is issued.
A man, who by order of filiation, or by DNA testing of paternity,
is determined to be the father of the child in any court of competent
jurisdiction.
A man recorded as the child's father in a tribal or state
governmental Vital Records Office or the equivalent.
A person assigned by a court of competent jurisdiction, other
than a parent, having the duty and authority to provide care and control
of a child.
An attorney appointed by the Court to advocate on behalf
of the child.
The Indian Child Welfare Act of 1978 (25 U.S.C.A. §§ 1903-44)
is a federal law that seeks to keep American Indian children with
American Indian families. The provisions of ICWA apply to state courts
when those courts are attempting to remove Indian children from Indian
homes. ICWA does not apply to Tribal Court proceedings or to child
custody proceedings following divorce proceedings of the child's
parents.
A person who is the child's parent, grandparent, biological,
adopted or half sibling, brother-in-law, sister-in-law, or other kinship
or nonkinship relations recognized by the child and/or family members
as having a close and positive relationship with the child.
An enrolled member of NHBP, a person eligible for enrollment
at NHBP, any member of a federally recognized Indian tribe, band or
community, or Alaska Native, any member of a historic tribe or band
recognized by the NHBP or the State of Michigan, or a person acknowledged
to be a Native American by the community.
An enrolled child of NHBP or enrolled member of a federally
recognized Indian tribe or Alaska Native who is a member of a tribe
or band that is acknowledged to exist as a tribe or band by the United
States, the Secretary of the Interior or a member of a historic tribe
or band recognized by the State of Michigan; a child eligible for
enrollment at NHBP, or eligible for membership in any federally recognized
Indian tribe, band, or community acknowledged to exist as a tribe
or band by the United States, the Secretary of the Interior, or band
recognized by the State of Michigan. A child who is eligible for such
membership who is the natural child of at least one (1) parent who
is an Indian as defined herein.
CONCURRENT JURISDICTIONJurisdiction that may be exercised simultaneously by more than one (1) court over the same subject matter and within the same territory.
EXCLUSIVE JURISDICTIONA court's power to adjudicate an action or class of actions to the exclusion of all other courts. In child protection cases the NHBP Tribal Court will have jurisdiction exclusive as to any state or other Tribal Court over any child protective proceeding involving an Indian child who resides or is domiciled within the reservation of NHBP, except where such jurisdiction is otherwise vested in the state by existing federal law. Where an Indian child is a ward of NHBP Tribal Court, the Tribe retains exclusive jurisdiction, regardless of the residence or domicile or subsequent change in his or her residence or domicile.
ORIGINAL JURISDICTIONA court's power to hear and decide a matter before any other court can review the matter.
Kewabmogeygoyen is the Bodewewadmi word for he/she is being
watched over by them.
A placement alternative which creates the least disruption,
upheaval or adverse effects upon the child and family, when considering
the best interests of the child, for obtaining the objectives of the
Court and this code.
One who by maternity, paternity or valid order of a court
of competent jurisdiction has custody and control over a minor child(ren).
Michigan Indian Family Preservation Act. MCLS 712B.1 to 712B.41
is a state law that seeks to keep American Indian children with American
Indian families and provide clarification to and support of ICWA.
The provisions of MIFPA apply to state courts when those courts are
attempting to remove Indian children from Indian homes. MIFPA does
not apply to Tribal Court proceedings or to child custody proceedings
following divorce proceedings of the child's parents.
A person less than eighteen (18) years of age.
A specialized team established to assist in the investigation
and prosecution of child abuse and neglect cases.
The Nottawaseppi Huron Band of the Potawatomi.
The parent who does not have primary physical custody of
or live with the child most of the time.
A person who is legally responsible for the control and care
of a child, including a biological mother or father of a child or
a child's adoptive parent. Not included in this definition are
persons whose parental rights have been terminated and a father whose
paternity has not been lawfully established as provided for in this
code.
Legal rights attached to and associated with parenthood and
all attendant responsibilities, duties, rights and obligations, including,
but not limited to:
Care, custody, maintenance and protection. A parent has the
obligation to lawfully provide for a child's care, custody, maintenance
and protection according to his/her own beliefs, customs and values
so long as the child is not placed at risk of physical, emotional
or developmental harm.
Adequate guidance. It is presumed that parental guidance is
given in good faith and in the best interests of the child. This presumption
may only be rebutted by clear and convincing evidence that guidance
provided to a child has directly resulted in physical, emotional or
developmental harm to the child.
Right to discipline. A parent has the right to correct the child
by reasonable and timely discipline, which must be corrective and
not punitive. Deprivation of basic needs such as food, shelter, education,
medical care or clothing will not be considered reasonable discipline.
Control of education. A parent may educate the child as he or
she sees fit as long as the child's intellectual development
is age appropriate and meets minimum community standards for academic
progress.
Religious training. The religious training of minor children,
or lack of it, is a matter solely within the parent's discretion.
The right to a child's services and earnings as long as
the child is not exploited.
The right to inherit from the child.
Scheduled times in which a parent or other approved extended
family members may engage in interaction with a child who does not
permanently reside with that parent or extended family member.
In any court action pursuant to this code, the Petitioner(s),
the Respondent(s), and the Child(ren) who are the subject of any legal
proceeding arising from enforcement of this code.
Fatherhood or the state of being a father.
A plan for long-term placement and care of a child who has
been adjudicated a protected child under the provisions of this code
and has remained in protective placement for a period of time that
would indicate that out-of-home care is in the best interests of the
child.
The person, agency or entity seeking relief or remedy under
the provisions of this code.
The Tribal Prosecuting Attorney or an Assistant Tribal Prosecuting
Attorney who represents the Tribe in all matters related to this code
and the Indian Child Welfare Act 25 U.S.C. § 1901 et seq.;
or one authorized by the Tribal Council to present cases involving
abuse and neglect to the NHBP Court for adjudication and to represent
the interests of NHBP in court cases involving NHBP member families.
A child who has been adjudicated to be a dependent or neglected
child, over whom the Tribal Court assumes jurisdiction, even if such
child is placed with the Michigan Department of Human Services or
other similar agency for care. A dependent/neglected child is a temporary
protected child of the Court until the time the case is dismissed
and/or jurisdiction terminates. In cases where parental rights are
terminated, the child becomes a permanent protected child of the Tribal
Court until the child is lawfully adopted, emancipated, or reaches
the age of majority.
Provision of residence for a child outside of the child's
domicile intended to be temporary pending investigation or adjudication
of allegations of child abuse or neglect as defined herein.
The protective services worker, social services worker, law enforcement personnel or any person who performs the duties and responsibilities set forth in Article V of this code.
An alleged or reputed father of a child born out of wedlock
or for whom paternity has not been legally established.
A person, in child protection proceedings under this code,
who is appointed by the Tribal Council as a QEW and who possesses
the following characteristics:
A member of the NHBP or, if the child is not a member of the
NHBP, a member of the 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; or
Substantial experience in the delivery of child and family services
to American Indians and extensive knowledge of prevailing social and
cultural standards in child-rearing practices within the child's
tribe; or
Is a professional person with extensive education and experience
in the area that testimony and opinion will be offered by such person.
The mandated responsibility of the agency into whose care
and custody the child's case is directed to provide, or ensure
that others provide, rehabilitative and supportive services tailored
to an individual person and/or family's specific circumstances
which are reasonably designed to prevent the removal of children from
their parent(s)' custody and care, or which promote the reunification
of the family, and which are conducive to altering individual and
family behaviors and attitudes that pose a risk to children. Services
should, whenever possible, be culturally specific and remedial in
intent.
The person or persons alleged to have violated provisions
of this code.
The return of a child or parent to the home and is the preferred
goal of this code.
The plan for the provision of services, participation and
compliance by parties in interest, placement, parenting time and other
relevant factors that are reasonably designed to facilitate the eventual
reunification of a family or to prevent the breakup of a family.
The U.S. Department of Interior's administrative designation
of Allegan, Barry, Branch, Calhoun, Kalamazoo, Kent, and Ottawa counties.
The tribal departmental unit responsible for administering
the protective and prevention services provided for in this children's
code, including, but not limited to, investigating reports of abuse
or neglect, planning and implementing reunification efforts, placement,
monitoring family progress, permanency planning and serving as the
representative services agency of the NHBP government in all actions
involving member children within other jurisdictions.
The department of the state in which the family lives that
promotes better health outcomes, reduces health risks, and supports
stable and safe families while encouraging self-sufficiency.
An order by a court of competent jurisdiction that, after
trial and deliberation, it is in the best interests of a child to
permanently terminate a parent's legal rights to the child.
The elected governing body, exercising the legislative and
executive powers of the Nottawaseppi Huron Band of the Potawatomi
as set forth in the NHBP Constitution.
The Tribal Court of the Nottawaseppi Huron Band of the Potawatomi.
A court of general jurisdiction functioning within the Tribal Judiciary
as the judicial branch of the Nottawaseppi Huron Band government as
set forth in the NHBP Constitution. The Tribal Court includes a trial
level court and a supreme court for all appeal matters.
See definition of "protected child."
Because of the vital interest of the NHBP in its member children
and those children who may become members, the statutes, regulations,
public policies, customs and common law of the NHBP will control in
any Tribal Court proceeding involving an Indian child as defined herein.
Lands owned by the Nottawaseppi Huron Band of the Potawatomi;
lands owned by the United States of America in trust for the Nottawaseppi
Huron Band of the Potawatomi; lands within the exterior boundaries
of the Nottawaseppi Huron Band reservation; and Indian country, as
defined in 18 U.S.C. § 1151.
The Nottawaseppi Huron Band of the Potawatomi and/or NHBP.
Any instrument, firearm, article, or substance which, regardless
of its primary function, is readily capable of being used to produce
death or serious bodily harm.
