Federal and Montana ICWA sets requirements for when an Indian child may be removed from their home in an emergency and what must occur after an emergency removal.

An Indian child can only be removed on an emergency basis to prevent "imminent physical damage or harm" to the child. Any emergency removal of an Indian child must end immediately when it is no longer necessary to prevent imminent physical damage or harm. 25 C.F.R. § 23.113; MCA 41-3-1325(2). The comments to the federal regulation make clear that Congress did not intend "imminent physical damage or harm" to be limited to situations causing serious bodily injury or death but to include the child's health, safety and welfare.

An emergency removal can be ended by the following:

Initiating a child custody proceeding subject to ICWA, including notice provisions.
Moving the child to the appropriate Tribe's jurisdiction.
Returning the child to a parent or Indian custodian. 25 C.F.R. § 23.113(c); MCA 41-3-1325(4).

In other words, the state can pursue a DN case in the appropriate Montana District Court or have the matter transferred to Tribal Court. If these legal actions are not pursued, the child should be returned home.

An emergency removal should not last more than 30 days in a Montana District Court unless the judge makes specific findings that returning the Indian child home would subject them to imminent physical damage or harm, the District Court has been unable to transfer the proceeding to the jurisdiction of the appropriate Tribe, and it has been impossible to initiate a child custody proceeding. 25 C.F.R. § 23.113(e); MCA 41-3-1325(7).

Most emergency removals lead to the filing of DN cases with child custody proceedings before a Montana District Court. Some of these dependency and neglect cases are transferred to Tribal Court, either before or after child custody proceedings are initiated in a Montana District Court. A few matters are not pursued in either court, and the Indian child is returned home, possibly with a safety plan in place.