SB572,106,98
2. As a person who is both eligible for membership in the
Indian tribe
or band 9and the biological child of a member of the
Indian tribe
or band.
SB572, s. 215
10Section
215. 48.981 (1) (i) of the statutes is amended to read:
SB572,106,1411
48.981
(1) (i) "Tribal agent" means the person designated under
25 CFR 23.12 12by an Indian tribe
or band to receive notice of involuntary child custody proceedings
13under the
Indian child welfare act federal Indian Child Welfare Act,
25 USC 1901 14to
1963.
SB572, s. 216
15Section
216. 48.981 (3) (bm) (intro.) of the statutes is amended to read:
SB572,106,2516
48.981
(3) (bm)
Notice of report to Indian
tribal agent tribe. (intro.) In a county
17which that has wholly or partially within its boundaries a
federally recognized
18Indian reservation or a bureau of Indian affairs service area for the Ho-Chunk tribe,
19if a county department
which that receives a report under par. (a) pertaining to a
20child or unborn child knows
or has reason to know that the child is an Indian child
21who resides in the county or that the unborn child is an Indian unborn child whose
22expectant mother resides in the county, the county department shall provide notice,
23which shall consist only of the name and address of the
Indian child or expectant
24mother and the fact that a report has been received about that
Indian child or
Indian 25unborn child, within 24 hours to one of the following:
SB572, s. 217
1Section
217. 48.981 (3) (bm) 1. of the statutes is amended to read:
SB572,107,62
48.981
(3) (bm) 1. If the county department knows with which
Indian tribe
or
3band the child is affiliated, or with which
Indian tribe
or band the
Indian unborn
4child, when born, may be eligible for affiliation, and
it the Indian tribe is a Wisconsin
5tribe or band, the tribal agent of that tribe or band
Indian tribe, the director of the
6tribal child welfare department.
SB572, s. 218
7Section
218. 48.981 (3) (bm) 2. of the statutes is amended to read:
SB572,107,138
48.981
(3) (bm) 2. If the county department
does not know knows with which
9Indian tribe
or band the child is affiliated, or with which
Indian tribe
or band the
10Indian unborn child, when born, may be eligible for affiliation,
or the child or
11expectant mother is not affiliated with and the Indian tribe is not a Wisconsin
Indian 12tribe
or band, the tribal agent
serving the reservation or Ho-Chunk service area
13where the child or expectant mother resides of that Indian tribe.
SB572, s. 219
14Section
219. 48.981 (3) (bm) 3. of the statutes is amended to read:
SB572,107,1915
48.981
(3) (bm) 3. If
neither subd. 1. nor 2. applies, any tribal agent serving a
16reservation or Ho-Chunk service area in the county
department does not know with
17which Indian tribe the Indian child is affiliated, or with which Indian tribe the Indian
18unborn child, when born, may be eligible for affiliation, the secretary of the U.S.
19department of the interior.
SB572, s. 220
20Section
220. 48.981 (7) (a) 2. of the statutes is amended to read:
SB572,107,2221
48.981
(7) (a) 2. Appropriate staff of an agency or a tribal
social services child
22welfare department.
SB572, s. 221
23Section
221. 48.981 (7) (a) 10m. of the statutes is amended to read:
SB572,108,424
48.981
(7) (a) 10m. A tribal court, or other adjudicative body authorized by
a
25tribe or band an Indian tribe to perform child welfare functions, that exercises
1jurisdiction over children and unborn children alleged to be in need of protection or
2services for use in proceedings in which abuse or neglect of the child who is the
3subject of the report or record or abuse of the unborn child who is the subject of the
4report or record is an issue.
SB572, s. 222
5Section
222. 48.981 (7) (a) 10r. of the statutes is amended to read:
SB572,108,116
48.981
(7) (a) 10r. A tribal court, or other adjudicative body authorized by
a
7tribe or band an Indian tribe to perform child welfare functions, that exercises
8jurisdiction over children alleged to be in need of protection or services for use in
9proceedings in which an issue is the substantial risk of abuse or neglect of a child
10who, during the time period covered by the report or record, was in the home of the
11child who is the subject of the report or record.
SB572, s. 223
12Section
223. 48.981 (7) (a) 11m. of the statutes is amended to read:
SB572,108,1613
48.981
(7) (a) 11m. An attorney representing the interests of an Indian tribe
14or band in proceedings under subd. 10m. or 10r., of an Indian child in proceedings
15under subd. 10m. or 10r. or of an Indian unborn child in proceedings under subd.
1610m.
SB572, s. 224
17Section
224. 48.981 (7) (am) of the statutes is amended to read:
SB572,108,2018
48.981
(7) (am) Notwithstanding par. (a) (intro.), a tribal agent who receives
19notice under sub. (3) (bm) may disclose the notice to a tribal
social services child
20welfare department.
SB572,109,1723
48.981
(8) (a) The department, the county departments, and a licensed child
24welfare agency under contract with the department in a county having a population
25of 500,000 or more to the extent feasible shall conduct continuing education and
1training programs for staff of the department, the county departments, licensed
2child welfare agencies under contract with the department or a county department,
3law enforcement agencies, and the tribal
social services child welfare departments,
4persons and officials required to report, the general public, and others as
5appropriate. The programs shall be designed to encourage reporting of child abuse
6and neglect and of unborn child abuse, to encourage self-reporting and voluntary
7acceptance of services and to improve communication, cooperation, and coordination
8in the identification, prevention, and treatment of child abuse and neglect and of
9unborn child abuse. Programs provided for staff of the department, county
10departments, and licensed child welfare agencies under contract with county
11departments or the department whose responsibilities include the investigation or
12treatment of child abuse or neglect shall also be designed to provide information on
13means of recognizing and appropriately responding to domestic abuse, as defined in
14s. 49.165 (1) (a). The department, the county departments, and a licensed child
15welfare agency under contract with the department in a county having a population
16of 500,000 or more shall develop public information programs about child abuse and
17neglect and about unborn child abuse.
SB572,109,2420
48.983
(1) (b) 1. b. An Indian child who has been the subject of a report under
21s. 48.981 about which an Indian tribe that has received a grant under this section has
22received notice, including but not limited to notice provided
to a tribal agent under
23s. 48.981 (3) (bm), and with respect to whom an individual designated by the Indian
24tribe has determined that all of the conditions in subd. 2. exist.
SB572, s. 230
7Section
230. 806.245 (1m) of the statutes is created to read:
SB572,110,128
806.245
(1m) The public acts, records, and judicial proceedings of any Indian
9tribe that are applicable to an Indian child custody proceeding, as defined in s. 48.028
10(2) (d), or an Indian juvenile child custody proceeding, as defined in s. 938.028 (2) (b),
11shall be given full faith and credit by the state as provided in s. 48.028 (3) (f) or
12938.028 (3) (f).
SB572, s. 231
13Section
231. 822.015 of the statutes is amended to read:
SB572,110,19
14822.015 Custody of Indian children. The
Indian child welfare act federal
15Indian Child Welfare Act,
25 USC 1911 to
1963, supersedes
the provisions of this
16chapter in any child custody proceeding governed by that act
, except that in any case
17in which this chapter provides a higher standard of protection for the rights of an
18Indian child's parent or Indian custodian than the rights provided under that act, the
19court shall apply the standard under this chapter.
SB572, s. 232
20Section
232. 938.02 (8d) of the statutes is created to read:
SB572,110,2321
938.02
(8d) "Indian" means any person who is a member of an Indian tribe or
22who is an Alaska native and a member of a regional corporation, as defined in
43 USC
231606.
SB572, s. 233
24Section
233. 938.02 (8g) of the statutes is created to read:
SB572,111,2
1938.02
(8g) "Indian juvenile" means an unmarried person who is under 18
2years of age and who is affiliated with an Indian tribe in any of the following ways:
SB572,111,33
(a) As a member of the Indian tribe.
SB572,111,54
(b) As a person who is eligible for membership in the Indian tribe and is the
5biological child of a member of the Indian tribe.
SB572, s. 234
6Section
234. 938.02 (8m) of the statutes is created to read:
SB572,111,77
938.02
(8m) "Indian juvenile's tribe" means one of the following:
SB572,111,98
(a) The Indian tribe in which an Indian juvenile is a member or eligible for
9membership.
SB572,111,1210
(b) In the case of an Indian juvenile who is a member of or eligible for
11membership in more than one tribe, the Indian tribe with which the Indian juvenile
12has the more significant contacts.
SB572, s. 235
13Section
235. 938.02 (8p) of the statutes is created to read:
SB572,111,1714
938.02
(8p) "Indian custodian" means an Indian person who has legal custody
15of an Indian juvenile under tribal law or custom or under state law or to whom
16temporary physical care, custody, and control has been transferred by the parent of
17the juvenile.
SB572, s. 236
18Section
236. 938.02 (8r) of the statutes is created to read:
SB572,111,2219
938.02
(8r) "Indian tribe" means any Indian tribe, band, nation, or other
20organized group or community of Indians that is recognized as eligible for the
21services provided to Indians by the U.S. secretary of the interior because of Indian
22status, including any Alaska native village, as defined in
43 USC 1602 (c).
SB572, s. 237
23Section
237. 938.02 (9m) of the statutes is renumbered 938.02 (8b).
SB572, s. 238
24Section
238. 938.02 (10m) of the statutes is amended to read:
SB572,112,5
1938.02
(10m) "Juvenile"
, when used without further qualification, means a
2person who is less than 18 years of age, except that for purposes of investigating or
3prosecuting a person who is alleged to have violated a state or federal criminal law
4or any civil law or municipal ordinance, "juvenile" does not include a person who has
5attained 17 years of age.
SB572, s. 239
6Section
239. 938.02 (12m) of the statutes is amended to read:
SB572,112,107
938.02
(12m) "Off-reservation trust land" means land in this state that is held
8in trust by the federal government for the benefit of
a an Indian tribe or
an American 9Indian individual and that is located outside the boundaries of
a an Indian tribe's
10reservation.
SB572, s. 240
11Section
240. 938.02 (13) of the statutes is amended to read:
SB572,112,2212
938.02
(13) "Parent" means either a biological parent, a husband who has
13consented to the artificial insemination of his wife under s. 891.40, or a parent by
14adoption. If the juvenile is a nonmarital child who is not adopted or whose parents
15do not subsequently intermarry under s. 767.803, "parent" includes a person
16acknowledged under s. 767.805 or a substantially similar law of another state or
17adjudicated to be the biological father. "Parent" does not include any person whose
18parental rights have been terminated.
For purposes of the application of s. 938.028
19and the federal Indian Child Welfare Act, 26 USC 1901 to 1963, "parent" includes an
20Indian person who has lawfully adopted an Indian juvenile, including an adoption
21under tribal law or custom, but does not include a parent by adoption who is not an
22Indian person.
SB572, s. 241
23Section
241. 938.02 (15) of the statutes is amended to read:
SB572,113,724
938.02
(15) "Relative" means a parent, stepparent, brother, sister, stepbrother,
25stepsister, half brother, half sister, brother-in-law, sister-in-law, first cousin, 2nd
1cousin, nephew, niece, uncle, aunt, stepuncle, stepaunt, or any person of a preceding
2generation as denoted by the prefix of grand, great, or great-great, whether by blood,
3marriage, or legal adoption, or the spouse of any person named in this subsection,
4even if the marriage is terminated by death or divorce.
"Relative" also includes, in
5the case of an Indian juvenile, an extended family member, as defined in s. 938.028
6(2) (a), whether by blood, marriage, or adoption, including adoption under tribal law
7or custom.
SB572, s. 242
8Section
242. 938.02 (15c) of the statutes is repealed and recreated to read:
SB572,113,139
938.02
(15c) "Reservation" means Indian country, as defined in
18 USC 1151,
10or any land not covered under that section to which the title is either held by the
11United States in trust for the benefit of an Indian tribe or individual or held by an
12Indian tribe or individual, subject to a restriction by the United States against
13alienation.
SB572, s. 243
14Section
243. 938.02 (18g) of the statutes is repealed.
SB572, s. 244
15Section
244. 938.02 (18j) of the statutes is created to read:
SB572,113,2016
938.02
(18j) "Tribal court" means a court that has jurisdiction over juvenile
17custody proceedings, and that is either a court of Indian offenses or a court
18established and operated under the code or custom of an Indian tribe, or any other
19administrative body of an Indian tribe that is vested with authority over Indian
20juvenile custody proceedings.
SB572, s. 245
21Section
245. 938.028 of the statutes is repealed and recreated to read:
SB572,113,25
22938.028 Indian juvenile welfare. (1) Declaration of policy. In Indian
23juvenile custody proceedings, the best interests of the Indian juvenile shall be
24determined consistent with the federal Indian Child Welfare Act,
25 USC 1901 to
251963. It is the policy of this state to do all of the following:
SB572,114,2
1(a) Cooperate fully with Indian tribes in order to ensure that the federal Indian
2Child Welfare Act is enforced in this state.
SB572,114,43
(b) Protect the best interests of Indian juveniles and promote the stability and
4security of Indian tribes and families by doing all of the following:
SB572,114,75
1. Establishing minimum standards for the removal of Indian juveniles from
6their families and the placement of those juveniles in out-of-home care placements
7that will reflect the unique value of Indian culture.
SB572,114,1582. Using practices, in accordance with the federal Indian Child Welfare Act,
25
9USC 1901 to
1963, this section, and other applicable law, that are designed to prevent
10the voluntary or involuntary out-of-home care placement of Indian juveniles and,
11when an out-of-home care placement is necessary, placing an Indian juvenile in a
12placement that reflects the unique values of the Indian juvenile's tribal culture and
13that is best able to assist the Indian juvenile in establishing, developing, and
14maintaining a political, cultural, and social relationship with the Indian juvenile's
15tribe and tribal community.
SB572,114,16
16(2) Definitions. In this section:
SB572,114,2117
(a) "Extended family member" means a person who is defined as a member of
18an Indian juvenile's extended family by the law or custom of the Indian juvenile's
19tribe or, in the absence of such a law or custom, a person who has attained the age
20of 18 years and who is the Indian juvenile's grandparent, aunt, uncle, brother, sister,
21brother-in-law, sister-in-law, niece, nephew, first cousin, 2nd cousin, or stepparent.
SB572,114,2422
(b) "Indian juvenile custody proceeding" means a proceeding under s. 938.13
23(4), (6), (6m), or (7) that is governed by the federal Indian Child Welfare Act,
25 USC
241901 to
1963, in which an out-of-home care placement may occur.
SB572,115,6
1(c) "Out-of-home care placement" means the removal of an Indian juvenile
2from his or her parent or Indian custodian for temporary placement in a foster home,
3treatment foster home, group home, residential care center for children and youth,
4or shelter care facility, in the home of a relative other than a parent, or in the home
5of a guardian, from which placement the parent or Indian custodian cannot have the
6juvenile returned upon demand.
SB572,115,77
(d) "Qualified expert witness" means a person who is any of the following:
SB572,115,108
1. A member of the Indian juvenile's tribe recognized by the Indian juvenile's
9tribal community as knowledgeable regarding the tribe's customs relating to family
10organization or child-rearing practices.
SB572,115,1211
2. A member of another tribe who is knowledgeable regarding the customs of
12the Indian juvenile's tribe relating to family organization or child-rearing practices.
SB572,115,1613
3. A professional person having substantial education and experience in the
14person's professional speciality and having extensive knowledge of the customs,
15traditions, and values of the Indian juvenile's tribe relating to family organization
16and child-rearing practices.
SB572,115,1917
4. A layperson having substantial experience in the delivery of juvenile and
18family services to Indians and substantial knowledge of the prevailing social and
19cultural standards and child-rearing practices of the Indian juvenile's tribe.
SB572,116,4
20(3) Jurisdiction over Indian juvenile custody proceedings. (a)
Applicability.
21This section and the federal Indian Child Welfare Act,
25 USC 1901 to
1963, apply
22to any Indian juvenile custody proceeding regardless of whether the Indian juvenile
23is in the legal custody or physical custody of an Indian parent, Indian custodian,
24extended family member, or other person at the commencement of the proceeding
25and whether the Indian juvenile resides or is domiciled on or off of a reservation. A
1court assigned to exercise jurisdiction under this chapter may not determine
2whether this section and the federal Indian Child Welfare Act,
25 USC 1901 to
1963,
3apply to an Indian juvenile custody proceeding based on whether the Indian juvenile
4is part of an existing Indian family.
SB572,116,115
(b)
Exclusive tribal jurisdiction. 1. An Indian tribe shall have exclusive
6jurisdiction over any Indian juvenile custody proceeding involving an Indian
7juvenile who resides or is domiciled within the reservation of the tribe, except when
8that jurisdiction is otherwise vested in the state by federal law and except as
9provided in subd. 2. If an Indian juvenile is a ward of a tribal court, the Indian tribe
10shall retain exclusive jurisdiction regardless of the residence or domicile of the
11juvenile.
SB572,116,2212
2. Subdivision 1. does not prevent an Indian juvenile who resides or is domiciled
13within a reservation, but who is temporarily located off the reservation, from being
14taken into and held in custody under ss. 938.19 to 938.21 in order to prevent
15imminent physical harm or damage to the Indian juvenile. The person taking the
16Indian juvenile into custody or the intake worker shall immediately release the
17Indian juvenile from custody upon determining that holding the Indian juvenile in
18custody is no longer necessary to prevent imminent physical damage or harm to the
19Indian juvenile and shall expeditiously restore the Indian juvenile to his or her
20parent or Indian custodian, release the Indian juvenile to an appropriate official of
21the Indian juvenile's tribe, or initiate an Indian juvenile custody proceeding, as may
22be appropriate.
SB572,117,323
(c)
Transfer of proceedings to tribe. In any Indian juvenile custody proceeding
24under this chapter involving an out-of-home placement of an Indian juvenile who
25is not residing or domiciled within the reservation of the Indian juvenile's tribe, the
1court assigned to exercise jurisdiction under this chapter shall, upon the petition of
2the Indian juvenile's parent, Indian custodian, or tribe, transfer the proceeding to the
3jurisdiction of the tribe unless any of the following applies:
SB572,117,44
1. A parent of the Indian juvenile objects to the transfer.
SB572,117,65
2. The Indian juvenile's tribe does not have a tribal court or tribal court of the
6Indian juvenile's tribe declines jurisdiction.
SB572,117,97
3. The court determines that good cause exists to deny the transfer. The court
8may determine that good cause exists to deny the transfer only if the person opposing
9the transfer shows to the satisfaction of the court any of the following:
SB572,117,1010
a. That the Indian juvenile is 12 years of age or over and objects to the transfer.
SB572,117,1711
b. That the evidence or testimony necessary to decide the case cannot be
12presented in tribal court without undue hardship to the parties or the witnesses and
13that the tribal court is unable to mitigate the hardship by making arrangements to
14receive the evidence or testimony by use of telephone or live audiovisual means, by
15hearing the evidence or testimony at a location that is convenient to the parties and
16witnesses, or by use of other means permissible under the tribal court's rules of
17evidence.
SB572,118,218
(d)
Declination of jurisdiction. If the court assigned to exercise jurisdiction
19under this chapter determines that the petitioner in an Indian juvenile custody
20proceeding has improperly removed the Indian juvenile from the custody of his or her
21parent or Indian custodian or has improperly retained custody of the Indian juvenile
22after a visit or other temporary relinquishment of custody, the court shall decline
23jurisdiction over the petition and immediately return the Indian juvenile to the
24custody of the parent or Indian custodian, unless the court determines that returning
1the Indian juvenile to his or her parent or Indian custodian would subject the Indian
2juvenile to substantial and immediate danger or the threat of that danger.
SB572,118,43
(e)
Intervention. An Indian juvenile's Indian custodian or tribe may intervene
4at any point in an Indian juvenile custody proceeding under this chapter.
SB572,118,95
(f)
Full faith and credit. The state shall give full faith and credit to the public
6acts, records, and judicial proceedings of any Indian tribe that are applicable to an
7Indian juvenile custody proceeding to the same extent that the state gives full faith
8and credit to the public acts, records, and judicial proceedings of any other
9governmental entity.
SB572,118,25
10(4) Court proceedings. (a)
Notice. In any involuntary proceeding under s.
11938.13 (4), (6), (6m), or (7) involving the out-of-home care placement of a juvenile
12whom the court knows or has reason to know is an Indian juvenile, the court or party
13seeking the out-of-home care placement shall, for the first hearing at the plea,
14fact-finding, and dispositional stages of the proceeding, notify the Indian juvenile's
15parent, Indian custodian, and tribe, by certified mail of the pending proceeding and
16of their right to intervene in the proceeding. Notice of subsequent hearings in a stage
17of a proceeding shall be in writing and may be given by mail, personal delivery, or
18facsimile transmission, but not by electronic mail. If the identity or location of the
19Indian juvenile's parent, Indian custodian, or tribe cannot be determined, that notice
20shall be given to the U.S. secretary of the interior in like manner. The next hearing
21in the proceeding may not be held until at least 10 days after receipt of the notice by
22the parent, Indian custodian, and tribe or until at least 25 days after receipt of the
23notice by the U.S. secretary of the interior. On request of the parent, Indian
24custodian, or tribe, the court shall grant a continuance of up to 20 additional days
25to enable the requester to prepare for that hearing.
SB572,119,8
1(b)
Appointment of counsel. Whenever an Indian juvenile is the subject of a
2proceeding under s. 938.13 (4), (6), (6m), or (7) involving the removal of the Indian
3juvenile from his or her home or the placement of the Indian juvenile in an
4out-of-home care placement, the Indian juvenile's parent or Indian custodian shall
5have the right to be represented by court-appointed counsel as provided in s. 938.23
6(2g). The court may also, in its discretion, appoint counsel for the Indian juvenile
7under s. 938.23 (1m) or (3) if the court finds that the appointment is in the best
8interests of the Indian juvenile.