APPROVED CHAPTER
JUNE 30, 2023 359
BY GOVERNOR PUBLIC LAW
STATE OF MAINE
_____
IN THE YEAR OF OUR LORD
TWO THOUSAND TWENTY-THREE
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S.P. 804 - L.D. 1970
An Act to Enact the Maine Indian Child Welfare Act
Emergency preamble. Whereas, acts and resolves of the Legislature do not
become effective until 90 days after adjournment unless enacted as emergencies; and
Whereas, this legislation provides essential protections for Indian children in
protective custody and guardianship actions; and
Whereas, in the judgment of the Legislature, these facts create an emergency within
the meaning of the Constitution of Maine and require the following legislation as
immediately necessary for the preservation of the public peace, health and safety; now,
therefore,
Be it enacted by the People of the State of Maine as follows:
Sec. 1. 18-C MRSA §5-213 is enacted to read:
§5-213. Indian Child Welfare Act of 1978 and Maine Indian Child Welfare Act
The federal Indian Child Welfare Act of 1978, 25 United States Code, Section 1901 et
seq. and the Maine Indian Child Welfare Act govern all proceedings under this Article that
pertain to an Indian child as defined in those Acts.
Sec. 2. 18-C MRSA §9-107, as enacted by PL 2017, c. 402, Pt. A, §2 and affected
by Pt. F, §1 and affected by PL 2019, c. 417, Pt. B, §14, is amended to read:
§9-107. Indian Child Welfare Act of 1978 and Maine Indian Child Welfare Act
The federal Indian Child Welfare Act of 1978, 25 United States Code, Title 25, Section
1901 et seq. governs and the Maine Indian Child Welfare Act govern all proceedings under
this Article that pertain to an Indian child as defined in that Act those Acts.
Sec. 3. 19-A MRSA §1658, sub-§2-A, ¶F, as enacted by PL 2021, c. 340, §2, is
amended to read:
F. The federal Indian Child Welfare Act of 1978, 25 United States Code, Title 25,
Section 1901 et seq., governs and the Maine Indian Child Welfare Act govern all
proceedings under this section that pertain to an Indian child as defined in that Act
those Acts.
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 Sec. 4. 19-A MRSA §1734, sub-§1, as enacted by PL 1999, c. 486, §3 and affected
by §6, is amended to read:
1. Proceedings governed by federal Indian Child Welfare Act of 1978 or Maine
Indian Child Welfare Act. A child custody proceeding that pertains to an Indian child as
defined in the federal Indian Child Welfare Act of 1978, 25 United States Code, Section
1901 et seq., or the Maine Indian Child Welfare Act is not subject to this chapter to the
extent that it is governed by the Indian Child Welfare either Act.
Sec. 5. 22 MRSA c. 1066 is enacted to read:
CHAPTER 1066
MAINE INDIAN CHILD WELFARE ACT
§3941. Short title
This Act may be known and cited as "the Maine Indian Child Welfare Act."
§3942. Legislative finding and declaration of policy
1. Finding. The Legislature finds and declares that membership or citizenship in an
Indian tribe, as well as eligibility for membership or citizenship in an Indian tribe, as
determined by each Indian tribe is a political classification.
2. Declaration of policy. The purpose of the Maine Indian Child Welfare Act is
recognition by the State that Indian tribes have a continuing and compelling governmental
interest in an Indian child whether or not the Indian child is in the physical or legal custody
of an Indian parent, an Indian custodian or an Indian extended family member at the
commencement of an Indian child custody proceeding or the Indian child has resided or is
domiciled on an Indian reservation. The State is committed to protecting the essential tribal
relations and best interests of an Indian child by promoting practices in accordance with all
laws designed to prevent the Indian child's voluntary or involuntary out-of-home placement
and, whenever such placement is necessary or ordered, by placing the Indian child,
whenever possible, in a placement that reflects the unique values of the Indian child's tribal
culture and that is best able to assist the Indian child in establishing, developing and
maintaining a political, cultural and social relationship with the Indian child's tribe and
tribal community. It is the policy of the State to cooperate fully with Indian tribes and tribal
members and citizens in this State and elsewhere in order to ensure that the intent and
provisions of this Act are enforced.
§3943. Definitions
As used in this Act, unless the context otherwise indicates, the following terms have
the following meanings.
1. Active efforts. "Active efforts" means affirmative, active, thorough and timely
efforts tailored to the facts and circumstances of the case and intended primarily to maintain
or reunite an Indian child with that child's family. When an agency is involved in the Indian
child custody proceeding, active efforts must include assisting the parent or parents or
Indian custodian through the steps of a case plan and with accessing or developing the
resources necessary to satisfy the case plan. To the maximum extent possible, active efforts
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should be provided in a manner consistent with the prevailing social and cultural conditions
and way of life of the Indian child's tribe and should be conducted in partnership with the
Indian child and the Indian child's parents, extended family members, Indian custodians
and tribe. Active efforts may include:
A. Conducting a comprehensive assessment of the circumstances of the Indian child's
family, with a focus on safe reunification as the most desirable goal;
B. Identifying appropriate services and helping the parents to overcome barriers,
including actively assisting the parents in obtaining such services;
C. Identifying, notifying and inviting representatives of the Indian child's tribe to
participate in providing support and services to the Indian child's family and in family
team meetings, permanency planning and resolution of placement issues;
D. Conducting or causing to be conducted a diligent search for the Indian child's
extended family members and contacting and consulting with extended family
members to provide family structure and support for the Indian child and the Indian
child's parents;
E. Offering and implementing all available and culturally appropriate family
preservation strategies and facilitating the use of remedial and rehabilitative services
provided by the Indian child's tribe;
F. Taking steps to keep siblings together whenever possible;
G. Supporting regular visits with parents or Indian custodians in the most natural
setting possible as well as trial home visits of the Indian child during any period of
removal, consistent with the need to ensure the health, safety and welfare of the child;
H. Identifying community resources including housing, financial, transportation,
mental health, substance abuse and peer support services and actively assisting the
Indian child's parents or, when appropriate, the child's family, in utilizing and accessing
those resources;
I. Monitoring progress and participation in services;
J. Considering alternative ways to address the needs of the Indian child's parents and,
when appropriate, the family, if the optimum services do not exist or are not available;
and
K. Providing post-reunification services and monitoring.
2. Adoptive placement. "Adoptive placement" means the permanent placement of an
Indian child for adoption, including any action resulting in a final decree of adoption.
3. Domicile. "Domicile" means:
A. For a parent or Indian custodian, the place at which a person has been physically
present and that the person regards as home; a person's true, fixed, principal and
permanent home, to which that person intends to return and remain indefinitely even
though the person may be currently residing elsewhere; and
B. For an Indian child, the domicile of the Indian child's parents or Indian custodian or
guardian or, in the case of an Indian child whose parents are not married to each other,
the domicile of the Indian child's custodial parent.
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 4. Emergency proceeding. "Emergency proceeding" means a court action that
involves the emergency removal or emergency placement of an Indian child, including
those pursuant to section 4034 or Title 18-C, Article 5. "Emergency proceeding" does not
include a court action involving an emergency award of custody of the Indian child to one
of the parents including, but not limited to, an emergency parental rights and
responsibilities order or a protection from abuse proceeding.
5. Extended family member. "Extended family member" means a person who is
defined as a member of an Indian child's extended family by the law or custom of the Indian
child's tribe or, in the absence of such law or custom, a person who has reached 18 years
of age and who is the Indian child's grandparent, aunt or uncle, sibling, sibling-in-law, niece
or nephew, first or second cousin or stepparent.
6. Foster care placement. "Foster care placement" means the removal of an Indian
child from the home of the child's parent or Indian custodian for temporary placement in a
foster home, qualified residential treatment program, residential care center for Indian
children and youth, or shelter care facility, in the home of a relative other than a parent or
Indian custodian, or in the home of a guardian or conservator, from which placement the
parent or Indian custodian cannot have the child returned upon demand. "Foster care
placement" does not include an adoptive placement, a preadoptive placement, an
emergency removal or the detention of an Indian child.
7. Indian. "Indian" means a person who is a member or citizen of an Indian tribe, or
who is an Alaska Native and a member of a Regional Corporation as defined in 43 United
States Code, Section 1606. Only an Indian tribe may determine its membership or
citizenship, including eligibility for membership or citizenship.
8. Indian child. "Indian child" means an unmarried person who is under 18 years of
age and is a member or citizen of an Indian tribe or is eligible for membership in or
citizenship of an Indian tribe and is the biological child of a member or citizen of an Indian
tribe.
9. Indian child custody proceeding. "Indian child custody proceeding" means a
proceeding, other than an emergency proceeding, that may culminate in any of the
following outcomes for or related to an Indian child:
A. Adoptive placement;
B. Foster care placement;
C. Preadoptive placement; or
D. Termination of parental rights.
An Indian child custody proceeding does not include a proceeding in tribal court or a
proceeding that may culminate in an outcome for which placement is based upon an act by
an Indian child that, if committed by an adult, would be considered a crime or a proceeding
involving an award of custody to one of the Indian child's parents, including, but not limited
to, a divorce proceeding, a parental rights and responsibilities proceeding, a judicial
separation proceeding, a protection from abuse proceeding or other domestic relations
proceeding.
10. Indian child's tribe. "Indian child's tribe" means the Indian tribe in which an
Indian child is a member or citizen, or eligible for membership or citizenship. In cases in
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which a child meets the definition of "Indian child" through more than one Indian tribe, the
Indian tribes must be given an opportunity to agree on which tribe is the Indian tribe for
purposes of this Act. If the Indian tribes are not able to come to an agreement, the court
shall designate the Indian child's tribe for purposes of this Act based on which Indian tribe
has more significant contacts with the Indian child.
11. Indian custodian. "Indian custodian" means an Indian person who has legal
custody of an Indian child under tribal law or custom or under state law or to whom
temporary physical care, custody and control has been transferred by the parent of the
Indian child.
12. Indian organization. "Indian organization" means a group, association,
partnership, corporation or other legal entity owned or controlled by Indians, or a majority
of whose members are Indians.
13. Indian tribe. "Indian tribe" means an Indian tribe, band, nation or other organized
group or community of Indians recognized as eligible for the services provided to Indians
by the United States Secretary of the Interior because of their status as Indians, including
an Alaska Native village as defined in 43 United States Code, Section 1602(c).
14. Involuntary Indian child custody proceeding. "Involuntary Indian child custody
proceeding" means an Indian child custody proceeding or emergency proceeding in which:
A. The parent or Indian custodian does not consent of that parent's or Indian custodian's
free will to the foster care placement, preadoptive placement, adoptive placement or
termination of parental rights of or to an Indian child; or
B. The parent or Indian custodian consents to the foster care placement, preadoptive
placement or adoptive placement under threat of removal of the Indian child by a state
court or agency.
15. Parent. "Parent" means a biological parent or parents of an Indian child or an
Indian person who has lawfully adopted an Indian child, including adoptions under tribal
law or custom. "Parent" does not include an unwed father when paternity has not been
acknowledged or established.
16. Preadoptive placement. "Preadoptive placement" means the temporary
placement of an Indian child in a foster home or institution after the termination of parental
rights, but before or in lieu of adoptive placement.
17. Qualified expert witness. "Qualified expert witness" means a person who meets
the requirements of section 3954.
18. Reservation. "Reservation" means Indian country, as defined in 18 United States
Code, Section 1151, or any land not covered under that section to which title is either held
by the United States in trust for the benefit of an Indian tribe or Indian or held by an Indian
tribe or Indian, subject to a restriction by the United States against alienation.
19. Termination of parental rights. "Termination of parental rights" means an action
resulting in the termination of the parent-child relationship.
20. Tribal court. "Tribal court" means a court of an Indian tribe with jurisdiction
over Indian child custody proceedings, including a federal court of Indian offenses, a court
established and operated under the code or custom of an Indian tribe or any other
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administrative body of an Indian tribe that is vested with authority over Indian child custody
proceedings.
21. Voluntary proceeding. "Voluntary proceeding" means an Indian child custody
proceeding or emergency proceeding in which a parent or Indian custodian consents, of
that person's free will and without the threat of removal by a state agency, to:
A. The foster care placement, preadoptive placement or adoptive placement of an
Indian child; or
B. The termination of parental rights to an Indian child.
§3944. Jurisdiction over Indian child custody proceedings
1. Exclusive jurisdiction. An Indian tribe has jurisdiction exclusive as to the courts
of the State over any Indian child custody proceeding or emergency proceeding held in this
State involving an Indian child who resides or is domiciled within the reservation of that
Indian tribe, except when the jurisdiction is otherwise vested in this State by federal law.
When an Indian child is a ward of a tribal court, the Indian tribe retains exclusive
jurisdiction, notwithstanding the residence or domicile of the child. Except as provided in
section 3953, any Indian child custody proceeding or emergency proceeding in District
Court or Probate Court that is within the exclusive jurisdiction of an Indian tribe must be
dismissed. The court shall expeditiously notify the tribal court of the pending dismissal
based on the tribe's exclusive jurisdiction and ensure that the tribal court is sent all
information regarding the proceeding, including but not limited to the pleadings and any
court record.
2. Transfer of proceedings; declination by tribal court. In any proceeding for the
foster care placement of, or termination of parental rights to, an Indian child who is not
domiciled or residing within the reservation of the Indian child's tribe, the District Court or
Probate Court shall, upon the petition of the Indian child's parent, Indian custodian or tribe,
promptly notify the tribal court of the transfer petition and transfer the proceeding to the
jurisdiction of the Indian child's tribe unless any of the following applies:
A. A parent of the Indian child objects to the transfer;
B. The Indian child's tribe does not have a tribal court, or the tribal court of the Indian
child's tribe declines jurisdiction; or
C. The court determines that good cause exists to deny the transfer. The party
opposing transfer has the burden to show good cause by clear and convincing evidence.
The good cause determination must be based on which court is best positioned to
adjudicate the proceeding, not on the potential outcome of the proceeding. In
determining whether good cause exists, the court may not consider:
(1) Whether the foster care placement or termination of parental rights proceeding
is at an advanced stage if the Indian child's parent, Indian custodian or tribe did not
receive notice of the child custody proceeding until an advanced stage;
(2) Whether there have been prior proceedings involvi