§ 39 — Indian affairs

New York § 39

• Jurisdiction: New York
• Law SOS: Social Services
• Art. 2: Department and State Board of Social Welfare

Text

§ 39. Indian affairs. 1. Powers and duties, if any, conferred or\nimposed, in terms, by laws now in force, on the governor, commissioners\nof the land office and the superintendent of purchase or fiscal\nsupervisor of state charities, so far only as they relate to affairs of\nIndians, or on the commissioner of education, so far only as they relate\nto affairs of Indians other than the education of children upon the\nIndian reservations, except such powers and duties, if any, as may have\nbeen conferred or imposed, in terms, on either of such officers, in\nrelation to such affairs, by laws enacted and in effect since July\nfirst, nineteen hundred and twenty-four, shall continue to be exercised\nand performed by the department, instead of by the officers named.\n 2. The office of children and family services may enter into an\nagreement with an Indian tribe for the provision of foster care,\npreventive and adoptive services to Indian children as defined in\nsubdivision thirty-six of section two of this chapter and for the\nprovision of adult and child protective services to Indians residing\nupon the tribe's reservation in the state, after the Indian tribe has\nsubmitted to the office of children and family services a plan that\nsatisfactorily demonstrates that such tribe is able to meet the\napplicable standards for foster care services, preventive services,\nadoptive services, and adult and child protective services set forth in\nthe applicable federal and state law and regulations. The office of\nchildren and family services is authorized to reimburse such tribe for\nthe full cost of foster care, preventive services, adult and child\nprotective services, and adoptive services and care, after deducting any\nfederal funds properly received on account thereof.\n 3. Any Indian tribe designated as such by the Secretary of the\nInterior which became subject to the jurisdiction of courts of the state\nof New York pursuant to sections two hundred thirty-two and two hundred\nthirty-three of title twenty-five of the United States code or any other\nfederal law, may reassume jurisdiction over those child custody\nproceedings provided for in articles three, seven, ten, and ten-A of the\nfamily court act and sections three hundred fifty-eight-a and three\nhundred eighty-four-b of this chapter involving Indian children provided\nthat the Secretary of the Interior has granted approval pursuant to and\nin accordance with the applicable sections of title twenty-five of the\nUnited States code.\n 4. Any Indian tribe designated as such by the state of New York which\nis subject to the jurisdiction of the courts of the state of New York,\nmay reassume jurisdiction over those child custody proceedings provided\nfor in articles three, seven, ten, and ten-A of the family court act,\nand sections three hundred fifty-eight-a and three hundred eighty-four-b\nof this chapter involving Indian children provided that the local\ncommissioner has granted approval in accordance with rules and\nregulations established by the department.\n 5. (a) An Indian tribe approved to assume jurisdiction shall have\nexclusive jurisdiction over any child custody proceeding involving an\nIndian child who resides or is domiciled within the reservation of such\ntribe, except where such jurisdiction is otherwise vested in the courts\nof the state of New York by existing federal law. Where an Indian child\nis a ward of a tribal court, the Indian tribe shall retain exclusive\njurisdiction, notwithstanding the residence or domicile of the child.\n (b) Notwithstanding the provisions of paragraph (a) of this\nsubdivision, nothing herein shall be construed to prevent the emergency\nremoval of an Indian child who is a resident of or is domiciled on a\nreservation, but temporarily located off the reservation, from his\nparents or Indian custodian or the emergency placement of such child in\na foster home or institution, under applicable state law in order to\nprevent imminent physical damage or harm to the child. The state\nauthority, official or agency shall insure that the emergency removal or\nplacement terminates immediately when such removal or placement is no\nlonger necessary to prevent imminent physical damage or harm to the\nchild and shall expeditiously initiate a child custody proceeding\nsubject to the provisions of this section, transfer the child to the\njurisdiction of the appropriate Indian tribe, or restore the child to\nthe parent or Indian custodian as may be appropriate.\n 6. In any state court child custody proceeding involving the foster\ncare placement of, or termination of parental rights to an Indian child\nnot domiciled or residing within the reservation of the Indian child's\ntribe, the court, in the absence of good cause to the contrary, shall\ntransfer such proceeding to the jurisdiction of the tribe, absent\nobjection by either parent, upon the petition of either parent or the\nIndian custodian or the Indian child's tribe; provided, however, that\nsuch transfer shall be subject to declination by the tribal court of\nsuch tribe.\n 7. In any state court proceeding involving the foster care placement\nof or the termination of parental rights to an Indian child, the Indian\ncustodian of the child and the Indian tribe shall have a right to\nintervene at any point in the proceeding.\n 8. The department may enter into an agreement, contract or compact\nwith an Indian tribe or intertribal consortium for the provision of\nwelfare related services by social services districts or by any tribe or\ntribes in connection with a tribal plan for direct tribal funding and\nadministration of federal temporary assistance to needy families block\ngrant monies.\n