[Code of Federal Regulations]

[Title 25, Volume 1]

[Revised as of April 1, 2005]

From the U.S. Government Printing Office via GPO Access

[CITE: 25CFR23.13]



[Page 103-104]

 

                            TITLE 25--INDIANS

 

     CHAPTER I--BUREAU OF INDIAN AFFAIRS, DEPARTMENT OF THE INTERIOR

 

PART 23_INDIAN CHILD WELFARE ACT--Table of Contents

 

 Subpart B_Notice of Involuntary Child Custody Proceedings and Payment 

                  for Appointed Counsel in State Courts

 

Sec.  23.13  Payment for appointed counsel in involuntary Indian child 

custody proceedings in state courts.



    (a) When a state court appoints counsel for an indigent Indian party 

in an involuntary Indian child custody proceeding for which the 

appointment of counsel is not authorized under state law, the court 

shall send written notice of the appointment to the BIA Area Director 

designated for that state in Sec.  23.11. The notice shall include the 

following:

    (1) Name, address, and telephone number of attorney who has been 

appointed.

    (2) Name and address of client for whom counsel is appointed.

    (3) Relationship of client to child.

    (4) Name of Indian child's tribe.

    (5) Copy of the petition or complaint.

    (6) Certification by the court that state law makes no provision for 

appointment of counsel in such proceedings.

    (7) Certification by the court that the Indian client is indigent.

    (b) The Area Director shall certify that the client is eligible to 

have his or her appointed counsel compensated by the BIA unless:

    (1) The litigation does not involve a child custody proceeding as 

defined in 25 U.S.C. 1903 (1);

    (2) The child who is the subject of the litigation is not an Indian 

child as defined in 25 U.S.C. 1903 (4);

    (3) The client is neither the Indian child who is the subject of the 

litigation, the Indian child's parent as defined in 25 U.S.C. 1903 (9), 

nor the child's Indian custodian as defined in 25 U.S.C. 1903 (6);

    (4) State law provides for appointment of counsel in such 

proceedings;

    (5) The notice to the Area Director of appointment of counsel is 

incomplete; or

    (6) Funds are not available for the particular fiscal year.

    (c) No later than 10 days after receipt of the notice of appointment 

of counsel, the Area Director shall notify the court, the client, and 

the attorney in writing whether the client has been certified as 

eligible to have his or her attorney fees and expenses paid by the BIA. 

If certification is denied, the notice shall include written reasons for 

that decision, together with a statement that complies with 25 CFR 2.7 

and that informs the applicant that the decision may be appealed to the 

Assistant Secretary. The Assistant Secretary shall consider appeals 

under this subsection in accordance with 25 CFR 2.20 (c) through (e). 

Appeal procedures shall be as set out in part 2 of this chapter.

    (d) When determining attorney fees and expenses, the court shall:

    (1) Determine the amount of payment due appointed counsel by the 

same procedures and criteria it uses in determining the fees and 

expenses to be paid appointed counsel in state juvenile delinquency 

proceedings; and

    (2) Submit approved vouchers to the Area Director who certified 

eligibility for BIA payment, together with the court's certification 

that the amount requested is reasonable under the state standards 

considering the work actually performed in light of criteria that apply 

in determining fees and expenses for appointed counsel in state juvenile 

delinquency proceedings.

    (e) The Area Director shall authorize the payment of attorney fees 

and expenses in the amount requested in the voucher approved by the 

court unless:

    (1) The amount of payment due the state-appointed counsel is 

inconsistent with the fees and expenses specified in Sec.  23.13 (d)(1); 

or

    (2) The client has not been certified previously as eligible under 

paragraph (c) of this section; or

    (3) The voucher is submitted later than 90 days after completion of 

the legal action involving a client certified as eligible for payment of 

legal fees under paragraph (b) of this section.

    (f) No later than 15 days after receipt of a payment voucher, the 

Area Director shall send written notice to the court, the client, and 

the attorney stating the amount of payment, if any, that has been 

authorized. If the payment has been denied, or the amount authorized is 

less than the amount requested in the voucher approved by the



[[Page 104]]



court, the notice shall include a written statement of the reasons for 

the decision together with a statement that complies with 25 CFR 2.7 and 

that informs the client that the decision may be appealed to the 

Interior Board of Indian Appeals in accordance with 25 CFR 2.4 (e); 43 

CFR 4.310 through 4.318 and 43 CFR 4.330 through 4.340.

    (g) Failure of the Area Director to meet the deadline specified in 

paragraphs (c) and (f) of this section may be treated as a denial for 

purposes of appeal under paragraph (f) of this section.

    (h) Payment for appointed counsel does not extend to Indian tribes 

involved in state court child custody proceedings or to Indian families 

involved in Indian child custody proceedings in tribal courts.