Kenaitze Indian Tribe

Address

Kenaitze Indian Tribe
P.O. Box 988
Kenai, AK 99611
Phone: (907) 283-3633
Fax: (907) 283-3052

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Domestic Relations Code

Chapter 1: General Provisions

Section 1. History and Purpose

Section 2. Authority and Jurisdiction

  1. Jurisdiction over Children's Matters

Section 3. Applicability

Section 4. Best Interest of the Child

Section 5. Guardian ad litems and CASAs

Section 6. Child Placement Preferences

Section 7. Family Receiving Home

Section 8. Definitions

Section 1. History and Purpose

Since time immemorial, we the Dena'ina Athabascan people, including the Kenaitze Indian Tribe, have resolved dispute and conflict, maintained community peace, and delivered justice within our Tribal Territory through the use of our Traditional Athabascan Laws, Customs, and Practices.

The purpose of this law is to provide policies and guidance for the Kenaitze Indian Tribe to take an active role in providing for the health, safety, and welfare of the Kenaitze people, to preserve and strengthen family ties whenever possible, to protect and preserve tribal heritage and cultural identity of the people within the Tribe's jurisdiction, and to promote cooperation with the Tribe by other courts and agencies in fulfilling the purposes of this law.

The intention of this law is to promote the health, safety, and welfare of the most valuable resource of the Kenaitze people. The welfare of our children and families is of the utmost importance. Families and children must receive the care and guidance necessary to allow them to become healthy, content, and productive members of society.

Section 2. Authority and Jurisdiction

The Kenaitze Tribal Government regulates domestic relations matters under the authority of its inherent sovereign powers as a federally recognized Indian tribe, under any additional new powers so delegated by Congress, under unwritten tribal law, under the Constitution of the Kenaitze Indian Tribe, and under written tribal ordinances. The Kenaitze Tribal Court shall have the authority to hear and decide all matters under this Code when one or more of the parties in a case are tribal members or are eligible for membership in the Kenaitze Indian Tribe or when the health, safety, or welfare of the tribal members or other residents is affected. Territorial jurisdiction shall not be a factor in establishing jurisdiction under this Code.

  1. Jurisdiction over Children's Matters
    1. In General. The Kenaitze Tribal Court shall have the authority to make decisions about matters involving children when the children are members or are eligible for membership in the Kenaitze Indian Tribe; when one or more of the parties in a case are tribal members or are eligible for membership in the Kenaitze Indian Tribe; or when the health, safety, or welfare of the tribal members or other residents is affected. Territorial jurisdiction shall not be a factor in establishing jurisdiction under this Code.
    2. Exclusive jurisdiction cases. Once the Tribe exercises its jurisdiction in a child welfare case, the Tribe acquires exclusive jurisdiction over all aspects of the case as a matter of tribal law. Upon filing of a complaint or petition under this Code or transfer of a child custody proceeding to this Court, the child who is the subject of the proceeding becomes a ward of the Tribal Court, and remains so until the case is dismissed or concluded, or until the Tribal Court gives authority to another government or another court by Tribal Court Order.
    3. Emergency jurisdiction over non-Tribal children. Where a child who is not a tribal member or eligible for membership in the tribe, is physically present on Tribal Territory and is faced with potential abuse or neglect and it appears that no other court is in a position to intervene within the necessary time frame, the Tribal Court may exercise temporary emergency jurisdiction as necessary to protect the child. Such jurisdiction will not be exclusive and will protect the child only for such time as is necessary for the matter to be brought to the attention of a court that has full jurisdiction over the child.
    4. Concurrent jurisdiction cases. If the child is a member of or eligible for membership in more than one tribe, the Kenaitze Tribal Court shall make efforts to communicate with the other tribe or tribes so that, if that tribe is also going to assert jurisdiction, a cooperative jurisdictional arrangement can be explored. If information is provided to the court to the effect that a state court case was already pending in state court at the time the Tribal Court case was filed, the Tribal Court shall make efforts to communicate with the state court to work out any jurisdictional issues.
    5. Jurisdiction not based on territory. The Kenaitze Tribal Court has the authority to hear and decide children's cases involving tribal members or children eligible for tribal membership even if the children do not live within their Territory.

Section 3. Applicability

This Code shall be applied to all new cases as well as all pending and existing cases at the Court's discretion or as is appropriate.

Section 4. Best Interest of the Child

In all cases involving children, the Kenaitze Tribal Court shall hear all the facts and evidence brought before it and shall respectfully consider the rights of all parties in the case, however, those of the child shall be most important. The best interest of the child shall be more important than the rights of any other person or entity.

In determining what is in the best interest of the child, the Court shall consider the following factors:

  1. The basic needs of the child, including, but not limited to, physical and medical needs, mental and emotional need, educational and cultural, and any other special needs of the child;
  2. Any evidence of violence, domestic violence, child abuse or child neglect in the involved adult's household(s) as determined by a criminal background check and/or by testimony of reliable sources;
  3. Any evidence of substance abuse [for definition, see Section 6, below] by the involved adults or someone living with them that would or does directly affect the emotional or physical well being of the child;
  4. The existing bond between the involved adults and the child;
  5. The ability of the involved adults to provide a stable home environment and to meet all of the needs of the child;
  6. Whether the involved adults are likely to encourage a positive relationship between the child and the other persons with whom the child has emotional ties;
  7. The advantages of keeping the child in the community where the child resides; and
  8. Any other things the Court feels are relevant to the best interest of the child.

Section 5. Guardian ad litems and CASAs

The Tribal Court may appoint a Guardian ad litem and/or CASA (Court Appointed Special Advocate) for a child in any case involving child abuse or neglect or any other case where the Court deems it necessary for a minor child to have such representation.

Section 6. Child Placement Preferences

The following placement preferences shall be applied in all cases where a child is placed out of the home, unless the Court finds that it would be in the child's best interest to vary the order of preference or place the child not according to these preferences:

  1. A member of the child's extended family who resides closest to or in the city or community in which the child resides;
  2. A member of the Kenaitze Indian Tribe that resides within the tribe's Territory;
  3. A foster home, licensed, approved or specified by the Kenaitze Indian Tribe;
  4. A member of another tribe that resides in or around the Tribe's Territory and with whom the child is culturally related.
  5. A member of the child's extended family who resides elsewhere;
  6. A resident of Kenai or the surrounding communities;
  7. A group treatment home.

Section 7. Family Receiving Home

In lieu of placing the child in an out-of-home placement, the Court may order the family to reside in a Family Receiving Home (hereinafter "FRH"). A FRH is a residential, therapeutic home designed to prevent the removal of children from their parents' care by providing intense services and supervision to the family unit. A FRH can be either 1) a separate facility designated by the Tribe for that purpose or 2) the home of a family within the Tribe that has been approved by the Tribe. The family may be ordered to participate in a FRH only if this service is available and only if it is in the child's best interest. The Tribe may develop further policies and procedures with regard to the development of the Family Receiving Home.

Section 8. Definitions

Unless otherwise specified, the following words and phrases, whenever used in this Code, shall have the following meanings:

"Adoptive placement" means the permanent placement of a child for adoption.

"Adult" means a person who is 18 years of age or older.

"CASA" means a Court Appointed Special Advocate trained by the Tribe or other approved organization.

"Child" means a person who is under 18 years of age.

"Child protection proceeding" means a case where a child is found to be a "child in need of aid," a foster care placement case, a termination of parental rights case, a preadoptive or adoptive placement case, or an adoption case that is contested by a parent, custodian or guardian.

"Corporal Punishment" means the infliction of excessive bodily pain as a penalty for disapproved behavior. It includes actions such as shaking, spanking, delivering a blow with a part of the body or an object, slapping, punching, pulling or action that seeks to induce pain.

"Custodian" means a person who has been given responsibility to care for a child either by a parent, or under tribal custom, court order, tribal law or State law.

"Domestic violence" Domestic violence means assault, threats of violence, or physical, sexual, or mental abuse of a person when the victim is a spouse, a former spouse or partner, an extended family member, a boyfriend or girlfriend, or any other person who has been an intimate partner, or a member of the social unit made up of those living together in the same dwelling as the victim or perpetrator.

"Extended family" means the person's parents, children, grandparents, great-grandparents, great-aunts, great-uncles, aunts, uncles, cousins, sisters, and brothers, or someone who is considered to be extended family under the traditional laws of the Kenaitze Tribe.

"Foster care placement" means any action removing a child from his/her parent or custodian for temporary placement in a foster home, a relative's home, an institution or the home of a guardian where the parent or custodian cannot have the child returned on demand.

"Foster home" means a home certified or licensed to provide foster care by the Kenaitze Tribe or another federally recognized tribe or a state licensed home.

"Guardian" means a person who is not a parent and is appointed by a tribal or state court to have legal custody of a child. A "Guardian" is not the same thing as a "Guardian ad litem."

"Guardian ad litem" means a person appointed by the Kenaitze Tribal Court to look after the best interests of any child involved in a case under this Code. The guardian ad litem (or GAL) shall be a full party in all cases. The guardian ad litem's job is to investigate facts in the case and advise the Court what actions the Court should take that would be in the child's best interest. The Court may adopt the advice of the GAL in whole or in part, or for good cause, may act or order action that is different than the advice of the GAL.

"Involved agency" means an agency that is a party to the case due to the request of the Tribe or because of the jurisdiction of another government over the case. Examples of this might be the Nakenu Family Center, State of Alaska OCS, or the social services department of another tribe or county in another state.

"Most significant contacts" means, among other things, that the Kenaitze Tribal Court shall consider, but is not limited to, the following factors:

  1. Length of time the child has lived in or near the Kenaitze Tribal Territory; and
  2. The child's participation in the activities of the Kenaitze Indian Tribe; and
  3. The child's fluency in the Native Language of the Dena'ina People; and
  4. Whether there has been a previous case with respect to the child by the Kenaitze Tribal Court; and
  5. The tribal membership of the child's custodial parent or other custodian; and
  6. The child's self identification with the Kenaitze Indian Tribe;
  7. Matriarchal Considerations; and
  8. Any other information relevant to the child's contacts with the Kenaitze Indian Tribe.

"Parent" means the biological parent of a child or any person who has lawfully adopted a child, whether in State or Tribal Court, or under tribal custom. It shall not mean any person as to whom the parent-child relationship has been lawfully terminated.

"Parties" means Petitioner(s) and Respondent(s) listed in the Petition to use the Tribal Court, the guardian ad litem/CASA and any other person or entity who is given the right by the Tribal Court to express and protect their interests in a case.

"Preadoptive placement" means the temporary placement of a child in a foster home or institution after the termination of parental rights, but prior to or in place of adoptive placement.

"Probable cause" for the purposes of a "child protection proceeding" means evidence from a reasonable, trustworthy source that would be a reasonable ground for belief that a child is a "child in need of aid" and that an investigation and hearing should be conducted to determine all the facts.

"Substance Abuse" means when the use of drugs, alcohol, or other mind-altering substances negatively affects any aspect of a person's life or their children's lives.

"Termination of parental rights" means any action resulting in the involuntary termination of the parent-child relationship.

"Ward" means a child who has been taken into custody by the Court making the Court the child's legal guardian.

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