N.Y. Social Services Law § 39: Indian affairs

§ 39. Indian affairs. 1. Powers and duties, if any, conferred or

imposed, in terms, by laws now in force, on the governor, commissioners

of the land office and the superintendent of purchase or fiscal

supervisor of state charities, so far only as they relate to affairs of

Indians, or on the commissioner of education, so far only as they relate

to affairs of Indians other than the education of children upon the

Indian reservations, except such powers and duties, if any, as may have

been conferred or imposed, in terms, on either of such officers, in

relation to such affairs, by laws enacted and in effect since July

first, nineteen hundred and twenty-four, shall continue to be exercised

and performed by the department, instead of by the officers named.

2. The office of children and family services may enter into an

agreement with an Indian tribe for the provision of foster care,

preventive and adoptive services to Indian children as defined in

subdivision thirty-six of section two of this chapter and for the

provision of adult and child protective services to Indians residing

upon the tribe's reservation in the state, after the Indian tribe has

submitted to the office of children and family services a plan that

satisfactorily demonstrates that such tribe is able to meet the

applicable standards for foster care services, preventive services,

adoptive services, and adult and child protective services set forth in

the applicable federal and state law and regulations. The office of

children and family services is authorized to reimburse such tribe for

the full cost of foster care, preventive services, adult and child

protective services, and adoptive services and care, after deducting any

federal funds properly received on account thereof.

3. Any Indian tribe designated as such by the Secretary of the

Interior which became subject to the jurisdiction of courts of the state

of New York pursuant to sections two hundred thirty-two and two hundred

thirty-three of title twenty-five of the United States code or any other

federal law, may reassume jurisdiction over those child custody

proceedings provided for in articles three, seven, ten, and ten-A of the

family court act and sections three hundred fifty-eight-a and three

hundred eighty-four-b of this chapter involving Indian children provided

that the Secretary of the Interior has granted approval pursuant to and

in accordance with the applicable sections of title twenty-five of the

United States code.

4. Any Indian tribe designated as such by the state of New York which

is subject to the jurisdiction of the courts of the state of New York,

may reassume jurisdiction over those child custody proceedings provided

for in articles three, seven, ten, and ten-A of the family court act,

and sections three hundred fifty-eight-a and three hundred eighty-four-b

of this chapter involving Indian children provided that the local

commissioner has granted approval in accordance with rules and

regulations established by the department.

5. (a) An Indian tribe approved to assume jurisdiction shall have

exclusive jurisdiction over any child custody proceeding involving an

Indian child who resides or is domiciled within the reservation of such

tribe, except where such jurisdiction is otherwise vested in the courts

of the state of New York by existing federal law. Where an Indian child

is a ward of a tribal court, the Indian tribe shall retain exclusive

jurisdiction, notwithstanding the residence or domicile of the child.

(b) Notwithstanding the provisions of paragraph (a) of this

subdivision, nothing herein shall be construed to prevent the emergency

removal of an Indian child who is a resident of or is domiciled on a

reservation, but temporarily located off the reservation, from his

parents or Indian custodian or the emergency placement of such child in

a foster home or institution, under applicable state law in order to

prevent imminent physical damage or harm to the child. The state

authority, official or agency shall insure that the emergency removal or

placement terminates immediately when such removal or placement is no

longer necessary to prevent imminent physical damage or harm to the

child and shall expeditiously initiate a child custody proceeding

subject to the provisions of this section, transfer the child to the

jurisdiction of the appropriate Indian tribe, or restore the child to

the parent or Indian custodian as may be appropriate.

6. In any state court child custody proceeding involving the foster

care placement of, or termination of parental rights to an Indian child

not domiciled or residing within the reservation of the Indian child's

tribe, the court, in the absence of good cause to the contrary, shall

transfer such proceeding to the jurisdiction of the tribe, absent

objection by either parent, upon the petition of either parent or the

Indian custodian or the Indian child's tribe; provided, however, that

such transfer shall be subject to declination by the tribal court of

such tribe.

7. In any state court proceeding involving the foster care placement

of or the termination of parental rights to an Indian child, the Indian

custodian of the child and the Indian tribe shall have a right to

intervene at any point in the proceeding.

8. The department may enter into an agreement, contract or compact

with an Indian tribe or intertribal consortium for the provision of

welfare related services by social services districts or by any tribe or

tribes in connection with a tribal plan for direct tribal funding and

administration of federal temporary assistance to needy families block

grant monies.