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25 U.S.C.A. § 1911

United States Code Annotated
Title 25.  Indians
Chapter 21. Indian Child Welfare (Refs & Annos)

Subchapter I. Child Custody Proceedings


§ 1911. Indian tribe jurisdiction over Indian child custody proceedings


(a) Exclusive jurisdiction


An Indian tribe shall have jurisdiction exclusive as to any State 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 State 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) Transfer of proceedings;  declination by tribal court


In any State court proceeding for 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, That such transfer shall be subject to declination by the tribal court of such tribe.


(c) State court proceedings;  intervention


In any State court proceeding for the foster care placement of, or termination of parental rights to, an Indian child, the Indian custodian of the child and the Indian child's tribe shall have a right to intervene at any point in the proceeding.


(d) Full faith and credit to public acts, records, and judicial proceedings of Indian tribes


The United States, every State, every territory or possession of the United States, and every Indian tribe shall give full faith and credit to the public acts, records, and judicial proceedings of any Indian tribe applicable to Indian child custody proceedings to the same extent that such entities give full faith and credit to the public acts, records, and judicial proceedings of any other entity.


CREDIT(S)


(Pub.L. 95-608, Title I, § 101, Nov. 8, 1978, 92 Stat. 3071.)


HISTORICAL AND STATUTORY NOTES


Revision Notes and Legislative Reports


1978 Acts. House Report No. 95-1386, see 1978 U.S. Code Cong. and Adm. News, p. 7530.


LAW REVIEW COMMENTARIES


Crucible of sovereignty:  Analyzing issues of tribal jurisdiction.  Frank Pommersheim, 31 Ariz.L.Rev. 329 (1989).


Fighting over Indian children:  The uses and abuses of jurisdictional ambiguity.  Barbara Ann Atwood, 36 UCLA L.Rev. 1051 (1989).


In re Junious M.:  The California application of the Indian Child Welfare Act.  Note, 8 J.Juv.L. 78 (1984).


Indian Child Welfare Act:  Guiding the determination of good cause to depart from the statutory placement preferences.  70 Wash.L.Rev. 1151 (1995).


Indian Child Welfare Act of 1978:  Does it apply to the adoption of an illegitimate Indian child?  38 Cath.U.L.Rev. 511 (1989).


Indian Child Welfare Act of 1978:  Protecting essential tribal interests.  Comment, 60 Colo.L.Rev. 131 (1989).


Note, voluntary adoptions under Indian Child Welfare Act of 1978:  Balancing the interests of children, families, and tribes.  63 S.Cal.L.Rev. 213 (1989).


Protecting abused children:  A judge's perspective on public law deprived child proceedings and the impact of the Indian Child Welfare Acts.  Edward L. Thompson, 15 Am.Indian L.Rev. 1 (1990).


Representing the Native American:  Culture, jurisdiction, and the Indian Child Welfare Act.  Jeanne Louise Carriere, 79 Iowa L.Rev. 585 (1994).


Treating tribes as states under federal statutes in the environmental arena:  Where laws of nature and natural law collide.  Richard A. Monette, 21 Vt.L.Rev. 111 (1996).


LIBRARY REFERENCES


American Digest System


Indians 6(2), 32(11).


Key Number System Topic No. 209.


RESEARCH REFERENCES


ALR Library


73 ALR, Fed. 448, What is "Interest" Relating to Property or Transaction Which is Subject of Action Sufficient to Satisfy that Requirement for Intervention as Matter of Right Under Rule 24(A)(2) of Federal Rules of Civil Procedure.


89 ALR 5th 195, Construction and Application of Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C.A. §§ 1901 et seq.) Upon Child Custody Determinations.


21 ALR 5th 396, Inconvenience of Forum as Ground for Declining Jurisdiction Under § 7 of the Uniform Child Custody Jurisdiction Act (UCCJA).


33 ALR 3rd 176, Requirements as to Residence or Domicil of Adoptee or Adoptive Parent for Purposes of Adoption.


Encyclopedias


2 Am. Jur. 2d Adoption § 27, Generally.


2 Am. Jur. 2d Adoption § 129, Intervention.


24A Am. Jur. 2d Divorce and Separation § 1156, Federal Constitutional and Statutory Requirements; Full Faith and Credit.


25 Am. Jur. 2d Domicil § 1, Domicil.


25 Am. Jur. 2d Domicil § 9, Law Governing Determination.


Am. Jur. 2d Indians § 145, Generally; Tribe's Jurisdiction.


Am. Jur. 2d Indians § 147, Full Faith and Credit.


Treatises and Practice Aids


14 Causes of Action 817, Cause of Action to Withdraw or Revoke Parental Consent to Adoption.


Federal Procedure, Lawyers Edition § 46:469, Exclusive Jurisdiction of Tribes.


Federal Procedure, Lawyers Edition § 46:476, Involuntary Termination of Parental Rights.


Federal Procedure, Lawyers Edition § 46:477, Standing to Invalidate Proceedings.


Federal Procedure, Lawyers Edition § 46:478, Applicability of Other Laws.


Federal Procedure, Lawyers Edition § 46:480, Referral or Transferal Jurisdiction.


Federal Procedure, Lawyers Edition § 46:482, Partial Retrocession.


Federal Procedure, Lawyers Edition § 46:484, Jurisdiction Other Than Transferal Jurisdiction.


NOTES OF DECISIONS


Adoption proceedings 22, 23

 Adoption proceedings - Generally 22

 Adoption proceedings - Notice 23

Assistance of counsel 17

Concurrent or exclusive jurisdiction 6

Constitutionality 1

Construction 2

Domicile or residence 5

Exclusiveness of tribal court jurisdiction 9

Findings 18

Forum non conveniens 14

Full faith and credit 20

Good cause for refusal, transfer of proceedings 13

Intervention 15, 16

 Intervention - Generally 15

 Intervention - Waiver 16

Judicial determination 19

Jurisdiction of state court 7

Jurisdiction of tribal court 8

Notice, adoption proceedings 23

Notice and hearing, transfer of proceedings 12

Paternity proceedings 24

Retroactive effect 3

Review 25

State regulation or control 4

Transfer of proceedings 11-13

 Transfer of proceedings - Generally 11

 Transfer of proceedings - Good cause for refusal 13

 Transfer of proceedings - Notice and hearing 12

Waiver, intervention 16

Waiver of jurisdiction 10

Waiver of objections 21

  

1. Constitutionality


Denial of access to state court under this section was based solely upon political status of parent and child and quasi-sovereign nature of tribe, and thus was discriminatory classification not prohibited by U.S.C.A.Const. Amends. 5 and 14.  Matter of Appeal in Pima County Juvenile Action No. S-903, Ariz.App.1981, 635 P.2d 187, 130 Ariz. 202, certiorari denied 102 S.Ct. 1644, 455 U.S. 1007, 71 L.Ed.2d 875.  Constitutional Law  305(2)


2. Construction


Rule that court had to give effect to clear language of statute was not altered by fact that Congress included express legislative findings and policy statement in ICWA, policy statement was available for clarification of ambiguous provisions of statute, but could not be used to create ambiguity. In re Adoption of S.S., Ill.App. 2 Dist.1993, 622 N.E.2d 832, 190 Ill.Dec. 802, 252 Ill.App.3d 33, appeal allowed 631 N.E.2d 709, 197 Ill.Dec. 487, 154 Ill.2d 560, reversed 657 N.E.2d 935, 212 Ill.Dec. 590, 167 Ill.2d 250, certiorari denied 116 S.Ct. 1320, 517 U.S. 1104, 134 L.Ed.2d 472. Statutes  190;  Statutes  211


3. Retroactive effect


Subsec. (b) of this section was not applicable where initial placement of children in foster care took place prior to enactment of this chapter and, though mother thereafter admitted portions of dependency and neglect petition and children were adjudicated dependent and neglected, those actions were not subsequent proceedings because they did not place the children in different foster care, did not terminate the mother's parental rights, and did not place the children in a preadoptive or adoptive situation.  People in Interest of J.L.G., Colo.App.1984, 687 P.2d 477.


4. State regulation or control


Indian Child Welfare Act (ICWA) preempted state statutes requiring groups and associations to be represented by attorney when applied to Indian tribe's attempt to intervene in child custody proceeding under ICWA.  State ex rel. Juvenile Dept. of Lane County v. Shuey, Or.App.1993, 850 P.2d 378, 119 Or.App. 185.  Attorney And Client  11(2.1);  States  18.67


Utah abandonment law, pursuant to which Navajo child abandoned by his mother would have acquired the domicile of foster parents, was preempted by federal law providing Indian courts with exclusive jurisdiction over custody proceedings involving children on reservation;  to extent that Utah law operated to permit child's natural mother to change his domicile as part of scheme to facilitate his adoption by non-Indians while she remained domiciled on reservation, it impermissibly conflicted with federal law.  Matter of Adoption of Halloway, Utah 1986, 732 P.2d 962.  Indians  6.6(2)


5. Domicile or residence


Children born out-of-wedlock to parents who were enrolled members of Choctaw Indian Tribe and residents and domiciliaries of Choctaw reservation in Mississippi were "domiciled" on that reservation within meaning of Indian Child Welfare Act's exclusive tribal jurisdiction provision even though they themselves were never physically present on reservation, and Mississippi Chancery Court thus lacked jurisdiction to enter adoption decree even though children were "voluntarily surrendered" for adoption.  Mississippi Band of Choctaw Indians v. Holyfield, U.S.Miss.1989, 109 S.Ct. 1597, 490 U.S. 30, 104 L.Ed.2d 29.  Domicile  5;  Indians  6.10


Though term "domicile" in key jurisdictional provision of Indian Child Welfare Act is not statutorily defined, Congress clearly intended uniform federal law of domicile for Act and did not consider definition of that term to be matter of state law.  Mississippi Band of Choctaw Indians v. Holyfield, U.S.Miss.1989, 109 S.Ct. 1597, 490 U.S. 30, 104 L.Ed.2d 29.  Federal Courts  417


Child was "domiciled" within reservation such that tribal court had exclusive jurisdiction over custody matter under Indian Child Welfare Act;  although reservation could not be deemed domicile of child on grounds that her paternal aunt had become her guardian, since power of attorney giving aunt custody of child did not establish formal guardianship, power of attorney did effectively confer upon aunt in loco parentis status inasmuch as she had de facto custody and control over child, made material decisions with regard to child, and provided for all of her support and maintenance.  Comanche Indian Tribe of Oklahoma v. Hovis, W.D.Okla.1994, 847 F.Supp. 871, reversed 53 F.3d 298, certiorari denied 116 S.Ct. 306, 516 U.S. 916, 133 L.Ed.2d 210. Indians  6.8


Tribal court's assertion of jurisdiction over children who were of one-fourth Indian blood and were enrolled members of tribe, contrary to wishes of their parents, exceeded court's jurisdiction;  matter did not arise from reservation, parents had not consented to tribal jurisdiction, children were not within territorial or personal jurisdiction of tribal court, and matter had not been transferred to tribal court "pursuant to law," as required under tribal code. Brown on Behalf of Brown v. Rice, D.Kan.1991, 760 F.Supp. 1459. Indians  6.6(2)


Indian tribal court has exclusive jurisdiction under Indian Child Welfare Act in event of either residence or domicile of child within reservation or tribal court wardship of Indian child;  where Indian child is not domiciled or residing within reservation, Act provides for tribal jurisdiction unless state court finds good cause to contrary.  Matter of Adoption of T.R.M., Ind.1988, 525 N.E.2d 298, rehearing denied, certiorari denied 109 S.Ct. 2072, 490 U.S. 1069, 104 L.Ed.2d 636.  Indians  6.10


Absent applicability of Indian Child Welfare Act, tribal courts do not have exclusive authority to adjudicate disputes which involve Indian children when neither child nor parents reside on reservation.  Application of DeFender, S.D.1989, 435 N.W.2d 717.  Indians  6.5


Jurisdictional provisions of Indian Child Welfare Act (ICWA) apply to child custody proceedings involving Indian children regardless of where children are born or where they are proposed for adoption;  application of ICWA is based on interest tribe has in its children.  Matter of Baby Boy Doe, Idaho 1993, 849 P.2d 925, 123 Idaho 464, certiorari denied 114 S.Ct. 173, 510 U.S. 860, 126 L.Ed.2d 133.  Indians  6.6(2)


Unemancipated Indian minor was domiciled within reservation that was domicile of her father for purpose of subsec. (a) of this section giving Indian tribe exclusive jurisdiction over any child custody proceeding involving Indian child domiciled within reservation of tribe.  Matter of Appeal in Pima County Juvenile Action No. S-903, Ariz.App.1981, 635 P.2d 187, 130 Ariz. 202, certiorari denied 102 S.Ct. 1644, 455 U.S. 1007, 71 L.Ed.2d 875. Indians  6.6(2)


Illegitimate child of unemancipated Indian minor took domicile of its mother for purpose of subsec. (a) of this section giving Indian tribe exclusive jurisdiction over any child custody proceeding involving Indian child domiciled within reservation of such tribe, notwithstanding that child was living in Arizona with prospective adoptive parents pursuant to temporary custody order.  Matter of Appeal in Pima County Juvenile Action No. S-903, Ariz.App.1981, 635 P.2d 187, 130 Ariz. 202, certiorari denied 102 S.Ct. 1644, 455 U.S. 1007, 71 L.Ed.2d 875.  Indians  6.6(2)


6. Concurrent or exclusive jurisdiction


Indian Child Welfare Act does not confer exclusive jurisdiction on either tribal court or state court to award custody of child in divorce proceedings; therefore, Act afforded no basis for granting tribal member's petition for writ of habeas corpus seeking return of his Indian children who had been removed from reservation pursuant to state court custody order.  In re Larch, C.A.4 (N.C.) 1989, 872 F.2d 66.  Habeas Corpus  539


ICWA provides for exclusive tribal jurisdiction over custody proceedings involving Indian children domiciled or residing within tribal reservation, and concurrent, but presumptively tribal, jurisdiction in other cases.  In re Adoption of S.S., Ill.App. 2 Dist.1993, 622 N.E.2d 832, 190 Ill.Dec. 802, 252 Ill.App.3d 33, appeal allowed 631 N.E.2d 709, 197 Ill.Dec. 487, 154 Ill.2d 560, reversed 657 N.E.2d 935, 212 Ill.Dec. 590, 167 Ill.2d 250, certiorari denied 116 S.Ct. 1320, 517 U.S. 1104, 134 L.Ed.2d 472.  Indians  6.6(2)


7. Jurisdiction of state court


Absent evidence that tribe had reassumed jurisdiction over child custody proceedings, as allowed under Indian Child Welfare Act (ICWA), California state court retained jurisdiction over proceedings to terminate tribal member's parental rights, place allegedly abused child in foster care, and ultimately place child in adoptive home.  Doe v. Mann, N.D.Cal.2003, 285 F.Supp.2d 1229.  Indians  6.6(2)


Indian Child Welfare Act does not divest state courts of their jurisdiction over children of Indian descent living off reservation.  Fletcher v. State of Fla., M.D.Fla.1994, 858 F.Supp. 169.  Indians  6.6(2)


Claims for injunctive and declaratory relief against state court judge, arising from judge's determination of jurisdiction in Indian adoption case would be dismissed, since plaintiff sought to reverse final judgment of adoption which resulted from evidentiary hearings in a specific case, and not to prospectively enjoin an ongoing unconstitutional practice, and thus narrow exception to doctrine of judicial immunity for prospective injunctive relief did not apply.  Navajo Nation v. District Court for Utah County, Fourth Judicial Dist., State of Utah, D.Utah 1985, 624 F.Supp. 130, affirmed 831 F.2d 929. Declaratory Judgment  362


Indian Child Welfare Act does not divest state courts of their jurisdiction over children of Indian descent living off reservation.  In re Interest of C.W., Neb.1992, 479 N.W.2d 105, 239 Neb. 817.  Indians  6.6(2)


Circuit court did not lack jurisdiction over custody dispute between natural parents of child by reason of Indian Child Welfare Act, since that Act, by its terms, applied only to child custody proceedings involving a foster care placement, termination of parental rights, preadoptive placement or adoptive placement.  Application of DeFender, S.D.1989, 435 N.W.2d 717.  Indians  6.8


In order for tribal court to have exclusive jurisdiction over child custody proceeding involving Indian child, under the Indian Child Welfare Act, child must be member of existing Indian family.  Claymore v. Serr, S.D.1987, 405 N.W.2d 650.  Indians  6.8


Juvenile court did not lack jurisdiction over proceedings to terminate parental rights on ground that mother and child were in fact residents and domiciliaries of the Standing Rock Sioux Reservation, considering that at time of voluntary termination proceedings, mother and child resided and were domiciled in Bismarck, and mother objected to the Standing Rock Sioux Tribe having jurisdiction, notice, or right to intervene in the proceedings.  B.R.T. v. Executive Director of Social Service Bd. North Dakota, N.D.1986, 391 N.W.2d 594.  Indians  27(2)


District court properly exercised jurisdiction over child dependency and neglect proceedings, even though parents and children were enrolled members of Indian tribe, where mother was domiciled off reservation at commencement of proceedings, father had objected to transfer of jurisdiction to tribe, and tribe declined to take jurisdiction of matter.  Matter of W.L., Mont.1993, 859 P.2d 1019, 260 Mont. 325.  Indians  6.6(2)


Indian Child Welfare Act does not deprive a state of its traditional jurisdiction over an Indian child within its venue;  it establishes concurrent jurisdiction with a preference for tribal court jurisdiction that can be overcome on a showing of good cause.  Matter of Maricopa County Juvenile Action No. JS-8287, Ariz.App. Div. 1 1991, 828 P.2d 1245, 171 Ariz. 104, review denied.  Indians  6.6(2)


Village council operated under the code or custom of an "Indian tribe" and, under the Indian Child Welfare Act, was vested with exclusive jurisdiction as a "tribal court" over matter of custody of Indian child and, in absence of a waiver, was not precluded from claiming same in proceedings in state court to place child in foster care and terminate natural mother's parental rights. Matter of J.M., Alaska 1986, 718 P.2d 150.  Indians  6.6(2)


In Indian child custody proceedings, if state court, as opposed to tribal court, properly has jurisdiction over subject matter, court is not divested of jurisdiction simply because it fails to comply with provisions of this chapter.  State ex rel. Juvenile Dept. of Multnomah County v. Charles, Or.App.1984, 688 P.2d 1354, 70 Or.App. 10, review allowed 693 P.2d 48, 298 Or. 427, review dismissed 701 P.2d 1052, 299 Or. 341.  Indians  6.6(2)


Where this chapter applies, the state court has a duty to exercise its jurisdiction over actions brought thereunder, since to decline jurisdiction in such a case would violate U.S.C.A.Const. Art. 6, cl. 2.  E. A. v. State, Alaska 1981, 623 P.2d 1210.  Indians  27(2)


8. Jurisdiction of tribal court


Applicability of sections of ICWA regarding tribal jurisdiction over child custody proceeding depends on nature of proceedings, child's age, and whether child is member of tribe, or eligible for membership and biological child of member of tribe.  In re Adoption of S.S., Ill.App. 2 Dist.1993, 622 N.E.2d 832, 190 Ill.Dec. 802, 252 Ill.App.3d 33, appeal allowed 631 N.E.2d 709, 197 Ill.Dec. 487, 154 Ill.2d 560, reversed 657 N.E.2d 935, 212 Ill.Dec. 590, 167 Ill.2d 250, certiorari denied 116 S.Ct. 1320, 517 U.S. 1104, 134 L.Ed.2d 472.  Indians  6.6(2)


9. Exclusiveness of tribal court jurisdiction


Indian tribe was collaterally estopped, under Oklahoma law, from instituting declaratory judgment suit in federal district court, seeking determination that tribal court had exclusive jurisdiction to decide issue of termination of mother's parental rights, after final judgment had already been entered in state court that it retained jurisdiction to make custodial determinations as part of divorce proceedings;  issues raised by Tribe in federal actions were same allegations advanced in state court.  Comanche Indian Tribe of Oklahoma v. Hovis, C.A.10 (Okla.) 1995, 53 F.3d 298, certiorari denied 116 S.Ct. 306, 516 U.S. 916, 133 L.Ed.2d 210.  Judgment  586(.5)


Where child was both resident of and domiciled within reservation on date tribal court issued order accepting jurisdiction and declaring child to be ward of tribal court, tribal court had exclusive jurisdiction to issue order and retained exclusive jurisdiction over child's custody proceedings, without regard to her subsequent residence or domicile.  Comanche Indian Tribe of Oklahoma v. Hovis, W.D.Okla.1994, 847 F.Supp. 871, reversed 53 F.3d 298, certiorari denied 116 S.Ct. 306, 516 U.S. 916, 133 L.Ed.2d 210. Indians  6.8


Tribal court had exclusive jurisdiction over adoption proceedings regarding children of Indian mother and deceased non-Indian father, where children were domiciled with mother on Indian reservation.  In re Adoption of S.S., Ill.App. 2 Dist.1993, 622 N.E.2d 832, 190 Ill.Dec. 802, 252 Ill.App.3d 33, appeal allowed 631 N.E.2d 709, 197 Ill.Dec. 487, 154 Ill.2d 560, reversed 657 N.E.2d 935, 212 Ill.Dec. 590, 167 Ill.2d 250, certiorari denied 116 S.Ct. 1320, 517 U.S. 1104, 134 L.Ed.2d 472.  Indians  6.10


Whether Indian Child Welfare Act (ICWA) applied to custody action filed by child's grandmother and whether tribal court properly asserted jurisdiction over child were matters to be litigated by tribal court;  tribal court had exclusive jurisdiction over matter.  Gray v. Pann, Mich.App.1994, 513 N.W.2d 154, 203 Mich.App. 461.  Indians  6.8


Tribal court had concurrent jurisdiction over proceedings to determine custody of Native American child who was not domiciled or residing within reservation of her tribe.  People in Interests of M.C., S.D.1993, 504 N.W.2d 598. Indians  6.6(2)


Exclusive jurisdiction granted to tribal court under Indian Child Welfare Act over child custody matters did not bar negligence claim against county for injuries received by Indian child while in foster care;  Indian Child Welfare Act specifically contemplated arrangement whereby tribal court delegated to county responsibility for foster care of Indian child and county accepted responsibility without evident conditions.  Sayers by Sayers v. Beltrami County, Minn.App.1991, 472 N.W.2d 656, review granted, reversed 481 N.W.2d 547.  Indians  6.6(2)


Tribal court gained exclusive jurisdiction over custody dispute when mother withdrew her consent to her child's adoption and tribal court made child ward of court pursuant to Indian Child Welfare Act, even though court subsequently granted physical custody of child to mother.  Matter of M.R.D.B., Mont.1990, 787 P.2d 1219, 241 Mont. 455.  Indians  6.6(2)


10. Waiver of jurisdiction


Letter which was written by the chief of the village council to a social worker in the Division of the Family and Youth Services and which contained a recommendation by the chief regarding termination of parental rights, while implying an understanding by the chief that the state had taken custody of the Indian child in question in order to provide foster care payments, could not be read as expressly waiving tribal jurisdiction over Indian child in question in favor of state court and, in absence of evidence that chief was authorized by village constitution or otherwise to act unilaterally on behalf of village council, could not be viewed as impliedly waiving such jurisdiction.  Matter of J.M., Alaska 1986, 718 P.2d 150.  Indians  6.6(2)


11. Transfer of proceedings--Generally


Indian Child Welfare Act (ICWA) did not require juvenile court to grant tribe's second request for transfer of jurisdiction, with regard to dependency proceedings affecting Native American children, after transfer had been granted to and declined by tribe when it learned that transfer would entail responsibility for foster care payments;  once tribe received jurisdiction, its rights under ICWA were met, and it was not in children's best interest to subject them to virtual recall by tribal authorities or to allow tribal authorities to disrupt bond formed with prospective adoptive family.  In re Jacqueline L., Cal.App. 4 Dist.1995, 39 Cal.Rptr.2d 178, 33 Cal.App.4th 325, review denied and ordered not to be officially published, certiorari denied 116 S.Ct. 386, 516 U.S. 946, 133 L.Ed.2d 308.


Best interests of child may override tribal or family interest for purposes of determining whether case of nondomiciled Indian tribe should be transferred from state court to tribal court;  case should be transferred upon request only in absence of good cause to the contrary.  In re Interest of C.W., Neb.1992, 479 N.W.2d 105, 239 Neb. 817.  Indians  6.6(2)


Where parents stipulated that they did not want dependency and neglect proceeding involving two Indian children transferred to tribal court and did not alter their position until well after decree of termination of parental rights, parental veto was made knowingly and voluntarily and trial court erred when it transferred jurisdiction to tribal court upon parents' petition to set aside decree.  Matter of S.Z., S.D.1982, 325 N.W.2d 53.  Stipulations  14(1)


For purposes of determining trial court's authority to transfer child custody proceeding under the Indian Child Welfare Act, nature of proceeding is determined by what is pending or potentially pending before state court at time transfer is requested.  Matter of J.B., Okla.App. Div. 3 1995, 900 P.2d 1014.  Indians  6.6(2)


Proceeding in which non-Indian paternal great-aunt and her husband sought guardianship of Indian children was required to be transferred to tribal court;  tribe did not intervene in proceeding in untimely fashion, distance between district court and tribal court was not great, children had significant contact with family members on reservation, and factors listed by district court which may have been good reasons to appoint great-aunt and husband as guardians had nothing to do with decision to transfer.  Matter of Guardianship of Ashley Elizabeth R., N.M.App.1993, 863 P.2d 451, 116 N.M. 416.  Indians  6.6(2)


When district court had properly exercised jurisdiction over child dependency and neglect proceedings despite fact that parents and children were enrolled members of Indian tribe, district court did not lose jurisdiction of case upon expiration of temporary custody order, and, therefore, fact that mother was domiciled on reservation at time of lapse of temporary order did not warrant transfer of jurisdiction of proceedings to tribal court pursuant to Indian Child Welfare Act.  Matter of W.L., Mont.1993, 859 P.2d 1019, 260 Mont. 325.  Indians  6.6(2)


Superior court could not transfer termination of parental rights proceeding to tribal court on Alaska native village's petition without first determining that tribe was authorized by Secretary of Interior to reassume jurisdiction over child custody matters.  Matter of K.E., Alaska 1987, 744 P.2d 1173. Indians  6.6(2)


Indian tribe was not entitled to transfer of child custody matter from Superior Court to tribe where the particular tribe had not been approved by the Secretary of United States Department of the Interior to reassume jurisdiction of custody matters.  Native Village of Nenana v. State, Dept. of Health & Social Services, Alaska 1986, 722 P.2d 219, certiorari denied 107 S.Ct. 649, 479 U.S. 1008, 93 L.Ed.2d 704.  Indians  6.6(2)


Where child of mother who was enrolled member of Indian tribe was domiciled outside tribe's reservation at time of commencement of child dependency and neglect action, mother was not entitled to order immediately transferring jurisdiction to tribal court;  however, extraterritorial jurisdiction of tribe created by this chapter was required to be adjudicated before merits of action.  Matter of M. E. M., Mont.1981, 635 P.2d 1313, 195 Mont. 329. Indians  6.6(2)


12. ---- Notice and hearing, transfer of proceedings


Transfer of jurisdiction over children of one-quarter Indian blood to Indian tribal court was not "pursuant to law," as required for tribal court to exercise jurisdiction pursuant to tribal code, as parents were not consulted prior to transfer and clearly would have objected had they been given opportunity;  under Indian Child Welfare Act, matter could not be transferred without consent of parents.  Brown on Behalf of Brown v. Rice, D.Kan.1991, 760 F.Supp. 1459.  Indians  6.6(2)


Indian child was not provided with adequate notice of hearing on Rosebud Sioux Tribe's motion to transfer jurisdiction over custody determination to Tribal court or an opportunity to be heard, where late in day trial court scheduled hearing on Tribe's motion for 8:15 the next morning, court denied child's request to delay making determination regarding transfer until it had listened to evidence which would establish "good cause to the contrary" at adjudication hearing which was scheduled for the following day, and trial court granted Tribe's motion to transfer without an evidentiary hearing or consideration of factors which may constitute "good cause" not to transfer jurisdiction. People in Interests of M.C., S.D.1993, 504 N.W.2d 598.  Indians  6.6(2)


Jurisdictional hearing was required before trial court could enter order either granting or denying request for transfer of jurisdiction of Indian children to tribal court, where Indian children lived outside of reservation.  Matter of G.L.O.C., Mont.1983, 668 P.2d 235, 205 Mont. 352.  Indians  27(2)


13. ---- Good cause for refusal, transfer of proceedings


Trial court had good cause for denying transfer of adoption proceedings to tribal court under Indian Child Welfare Act on basis of best interests of child;  biological Indian mother had long history of drug and alcohol abuse, had been jailed approximately 15 times, was fully aware of legal implications of placing child for adoption, and child resided with non-Indian adoptive parents since first week of her life.  Matter of Adoption of T.R.M., Ind.1988, 525 N.E.2d 298, rehearing denied, certiorari denied 109 S.Ct. 2072, 490 U.S. 1069, 104 L.Ed.2d 636.  Indians  6.10


Good cause existed for not transferring termination of parental rights case involving Indians to tribal court, under ICWA;  termination proceedings were well advanced at time that transfer of petition was first filed, transfer would result in hardship to the parties as bulk of evidence and majority of witnesses were amenable to state court jurisdiction but not that of tribal court, state had had extensive contact with family for over four years while tribe's contact was limited and sporadic, and tribes had representative present at termination hearing who could advance cultural interest of tribe.  In Interest of J.W., Iowa App.1995, 528 N.W.2d 657.  Indians  6.6(2)


Good cause existed not to transfer proceedings to terminate grandmother's custodial rights in two minor Indian children to tribal court;  children were over five years of age and had little or no contact with tribe, evidence in case could not be adequately presented to tribal court without undue hardship to parties and witnesses, and petition was untimely.  People in Interest of J.J., S.D.1990, 454 N.W.2d 317.  Indians  6.6(2)


Bureau of Indian Affairs Guidelines on what constitutes good cause for refusal to transfer proceeding on termination of parental rights to jurisdiction of tribe are not binding and are interpretative, rather than legislative.  (Per Justice Morgan, J., one Justice concurring and three Justices specially concurring.)  Matter of Dependency and Neglect of A.L., S.D.1989, 442 N.W.2d 233.  Administrative Law And Procedure  416.1;  Indians  4


In determining good cause to deny transfer of proceedings involving welfare of Indian children to tribal court, Supreme Court may consider circumstances when evidence necessary to decide the case could not be adequately presented in tribal court without undue hardship of parties or witnesses.  In Interest of J.R.H., Iowa 1984, 358 N.W.2d 311.  Indians  6.6(2)


Record supported determination that petition to transfer dependency and parental rights termination proceedings from county court to tribal court was unauthorized and transfer declined, and to support finding that proceedings had been abandoned by tribal court and that good cause existed for denying transfer, in view, inter alia, of failure of tribe or tribal court representative to appear at time set for hearing, lack of appeal from denial of transfer, and evidence that subject Indian child did not reside on reservation.  (Per McCown, J., with one Justice concurring and three Justices concurring in result.)  In re Interest of Bird Head, Neb.1983, 331 N.W.2d 785, 213 Neb. 741.  Infants  175.1


Trial court did not abuse its discretion in denying transfer of dependency and neglect case involving Indian child to tribal court;  proceedings were at advanced stage and tribe's motion, filed over three years after tribe received notice of dependency and neglect petition, was untimely.  People in Interest of A.T.W.S., Colo.App.1994, 899 P.2d 223, rehearing denied, certiorari denied.  Indians  6.6(2)


Under Indian Child Welfare Act (ICWA), whether "good cause" exists to retain jurisdiction over Indian child custody proceedings involving child living off reservation, rather than transferring proceeding to tribal court, is within juvenile court's discretion, and determination is necessarily made on case-by-case basis, after consideration of all circumstances.  People in Interest of J.L.P., Colo.App.1994, 870 P.2d 1252.  Indians  6.6(2)


Lack of registration with tribe cannot be considered good cause not to transfer proceeding to tribal court under Indian Child Welfare Act, because Act applies to Indian children regardless of whether they are registered with tribe. Matter of Guardianship of Ashley Elizabeth R., N.M.App.1993, 863 P.2d 451, 116 N.M. 416.  Indians  6.6(2)


Trial court did not abuse its discretion in denying Pueblo's petition to transfer parental rights termination proceedings to tribal court;  Pueblo had been notified of all proceedings concerning child's dependency but waited for over two years to petition for transfer, during which time child had bonded to her foster-adoptive family and planning for child's adoption had begun, particularly as there was no indication that Pueblo was unable to file transfer petition earlier.  Matter of Maricopa County Juvenile Action No. JS-8287, Ariz.App. Div. 1 1991, 828 P.2d 1245, 171 Ariz. 104, review denied. Indians  6.6(2)


Transfer of jurisdiction to tribal court was not mandated by Indian Child Welfare Act transfer provision where, although child was eligible for membership in Eskimo tribe, neither child nor her mother was member of the tribe, child had never lived on the reservation, and had never had any contact whatsoever with the tribe.  Matter of T.S., Mont.1990, 801 P.2d 77, 245 Mont. 242, certiorari denied 111 S.Ct. 2013, 500 U.S. 917, 114 L.Ed.2d 100.  Indians  6.6(2)


Presence of witnesses and parties in Okmulgee County, and best interests of Indian child, supported finding good cause to deny mother's request to transfer proceeding on petition alleging Indian child was deprived from trial court in Okmulgee County to tribal court in Kay County.  Matter of N.L., Okla.1988, 754 P.2d 863.  Indians  6.6(3)


Where non-Indian mother of illegitimate child objected to transfer of proceeding for adoption of child to court of Indian offenses and, as specifically provided by subsec. (b) of this section, such a transfer could not be made over her objection, petition to transfer jurisdiction to court of Indian offenses was properly denied.  Matter of Adoption of Baby Boy L., Kan.1982, 643 P.2d 168, 231 Kan. 199.  Indians  6.10


"Good cause" existed under Indian Child Welfare Act to hold child placement proceeding in South Carolina court, rather than transferring jurisdiction to tribal court in South Dakota;  bulk of evidence and majority of witnesses necessary for termination of parental rights action were located in South Carolina, all witnesses to physical and sexual abuse, as well as records of treatment and evaluation, were located in South Carolina, and if parental rights were terminated, there would be adoptive placement hearing and in attempting to show that good cause existed to overcome preference for placing child with a member of child's extended family or other Indian families, foster parents would inevitably utilize testimony of people present in South Carolina to show their fitness as parents.  Chester County Dept. of Social Services v. Coleman, S.C.1990, 399 S.E.2d 773, 303 S.C. 226, certiorari denied 111 S.Ct. 2017, 500 U.S. 918, 114 L.Ed.2d 103.  Indians  6.6(2)


Indian Child Welfare Act did not require transfer of adoption proceeding to tribal court since neither child nor natural mother had ever resided within reservation of tribe, no petition to transfer had been filed by either parent or Indian custodian, and no "good cause" existed for transfer to tribal court.  C.E.H. v. L.M.W., Mo.App. W.D.1992, 837 S.W.2d 947, rehearing and/or transfer denied.  Indians  6.10


14. Forum non conveniens


Under Indian Child Welfare Act, in deciding whether to invoke doctrine of forum non conveniens, trial court should consider practical factors that make trial of case easy, expeditious and inexpensive such as relative ease of access to sources of proof, cost of obtaining attendance of witnesses, and ability to secure attendance of witnesses through compulsory process.  In re Interest of C.W., Neb.1992, 479 N.W.2d 105, 239 Neb. 817.  Indians  6.6(3)


Indian Child Welfare Act's good cause exception authorizing transfer from state court to tribal court allows state courts to apply modified version of forum non conveniens when deciding whether to retain or transfer jurisdiction in Indian child custody proceedings.  Matter of Maricopa County Juvenile Action No. JS-8287, Ariz.App. Div. 1 1991, 828 P.2d 1245, 171 Ariz. 104, review denied.  Indians  6.6(2)


Provision of subsec. (b) of this section for state court to transfer parental rights termination proceeding with respect to Indian child not domiciled within reservation of child's tribe, to jurisdiction of tribe was intended to permit state court to apply a modified doctrine of forum non conveniens.  Matter of Appeal in Pima County Juvenile Action No. S-903, Ariz.App.1981, 635 P.2d 187, 130 Ariz. 202, certiorari denied 102 S.Ct. 1644, 455 U.S. 1007, 71 L.Ed.2d 875.  Courts  28


Although Indian child was living in Arizona with prospective adoptive parents pursuant to temporary custody order, Arizona court should have deferred to tribal jurisdiction in parental rights termination proceeding where evidence concerning mother's fitness as a parent would be more readily accessible in Montana, in which reservation of mother's tribe was located, and qualified expert witnesses as to whether custody in mother would likely result in serious emotional or physical damage to child would also be more accessible there since expert witnesses lacking knowledge of tribal culture and values might not be "qualified" to give an opinion.  Matter of Appeal in Pima County Juvenile Action No. S-903, Ariz.App.1981, 635 P.2d 187, 130 Ariz. 202, certiorari denied 102 S.Ct. 1644, 455 U.S. 1007, 71 L.Ed.2d 875.  Indians  6.6(2)


Geographical obstacles to find "good cause" not to transfer state adoption proceeding involving Indian child to tribal court may be considered under modified forum non conveniens analysis where almost all parties and witnesses reside in county of state court and have no contact with tribal court. C.E.H. v. L.M.W., Mo.App. W.D.1992, 837 S.W.2d 947, rehearing and/or transfer denied.  Indians  6.10


15. Intervention--Generally


Indian tribe would have significantly protectable interest, for purpose of intervening as of right in challenge to adoption of Indian child, if it could show that child was domiciled on Indian reservation at time of adoption. Navajo Nation v. Superior Court of State of Wash. for Yakima County, E.D.Wash.1999, 47 F.Supp.2d 1233, affirmed 331 F.3d 1041.  Federal Civil Procedure  331


Under the Indian Child Welfare Act, putative extended family members were not entitled to intervene in action brought by putative father to challenge judgment of adoption.  Matter of Adoption of a Child of Indian Heritage, N.J.1988, 543 A.2d 925, 111 N.J. 155.  Indians  6.10


Indian Child Welfare Act (ICWA) did not give Indian tribe automatic right to intervene in ancillary proceeding intended to assist in completing voluntary adoptive placement;  however, ICWA did not preclude intervention.  In re Baby Girl A., Cal.App. 4 Dist.1991, 282 Cal.Rptr. 105, 230 Cal.App.3d 1611, review denied.  Indians  6.10


In intrafamily custody dispute over Indian child between parents and grandparent all of whom were Indians, child's Indian tribe had statutory right to intervene;  intervention by Indian tribe would provide vehicle for improving information available to district court and would assist court in determining child's best interest.  In re Custody of A.K.H., Minn.App.1993, 502 N.W.2d 790, review denied.  Indians  6.8


Indian tribe which seeks to intervene in guardianship proceeding involving Indian child is not required to intervene at first stage of proceedings but may wait to intervene until trial court reaches dispositional stage.  Matter of Guardianship of Q.G.M., Okla.1991, 808 P.2d 684.  Indians  6.6(3)


Intrafamily custody disputes are not excluded from Indian Child Welfare Act requirement that Indian child's tribe to receive notice of foster care placement or termination of parental rights proceedings and be permitted to intervene.  In re Custody of S.B.R., Wash.App.1986, 719 P.2d 154, 43 Wash.App. 622, reconsideration denied.  Indians  6.6(3)


Where Indian tribes' interest is substantial and alternatives to requiring intervention unacceptable, they must be allowed to participate in hearings at which their values are significantly implicated, including adoption proceedings.  Matter of J.R.S., Alaska 1984, 690 P.2d 10.  Indians  27(5)


This chapter did not preclude trial court from exercising its discretion in allowing intervention by Indian tribe in adoption proceeding involving Indian child.  Matter of Appeal in Maricopa County Juvenile Action No. A-25525, Ariz.App.1983, 667 P.2d 228, 136 Ariz. 528.  Adoption  11


Any error which might have occurred by refusal of Kiowa Tribe's petition to intervene in adoption proceeding was harmless in view of non-Indian mother's clear intention to revoke her consent to adoption and again take custody of her illegitimate child if adoption for benefit of adoptive couple was denied for any reason or if an attempt was made to place child for adoption under terms of this chapter, since any attempt to effect preferential placement contemplated by the provisions of this chapter would necessarily result in removal of child from custody of adoptive couple and thereupon, there being no consent by mother to any such action, child would be returned to her.  Matter of Adoption of Baby Boy L., Kan.1982, 643 P.2d 168, 231 Kan. 199.  Adoption  15


16. ---- Waiver, intervention


Tribe did not waive its right to intervene in adoption proceeding two years after receipt of notice of proceeding to terminate parental rights, notwithstanding notice provision of Indian Child Welfare Act (ICWA), which specified ten-day suspension of foster care placement or termination proceeding after tribe's receipt of notice and allowed tribe to request additional 20 days to prepare for such proceeding, given that another subsection of ICWA explicitly permitted tribe to intervene at any point in proceeding.  Matter of Adoption of Riffle, Mont.1995, 902 P.2d 542, 273 Mont. 237.  Indians  6.10


Indian tribe's waiver of right to intervene in guardianship proceeding should not be inferred and cannot be based simply on failure of Indian tribe to intervene at initial proceeding;  waiver of right to intervene must be express.  Matter of Guardianship of Q.G.M., Okla.1991, 808 P.2d 684. Indians  6.6(3)


17. Assistance of counsel


Where non-Indian father's request for appointment of counsel prior to transfer of Indian children to Indian tribal court was inextricably connected with asserting rights of one who might object to transfer, trial court first had to determine whether father was entitled to court-appointed counsel before it could proceed with hearing and enter order on transfer question.  Matter of G.L.O.C., Mont.1983, 668 P.2d 235, 205 Mont. 352.  Indians  27(2)


18. Findings


In Indian child custody proceedings, trial courts should explicitly enter finding, as required by this chapter, that children at issue are Indian children.  Matter of K.A.B.E., S.D.1982, 325 N.W.2d 840.  Indians  6.5


19. Judicial determination


Determination by tribal counsel that it would be in best interests of child to be taken into tribal custody constituted "judicial determination" of necessity for foster care, for purposes of entitlement to federally assisted foster care payments.  Native Village of Stevens v. Smith, C.A.9 (Alaska) 1985, 770 F.2d 1486, certiorari denied 106 S.Ct. 1640, 475 U.S. 1121, 90 L.Ed.2d 185. Social Security And Public Welfare  194.30


20. Full faith and credit


Indian Child Welfare Act's full faith and credit clause permitted Alaska native villages to bring action in federal court to determine their rights under Act.  Native Village of Venetie I.R.A. Council v. State of Alaska, C.A.9 (Alaska) 1991, 944 F.2d 548, rehearing denied, on remand.  Action  3; Federal Courts  195;  Indians  6.5


Question of whether state court failed to give requisite full faith and credit to tribal resolution, in action for foster care and adoptive placement of abused Native American child, raised fact issue that could not be determined on motion to dismiss for failure to state claim.  Doe v. Mann, N.D.Cal.2003, 285 F.Supp.2d 1229.  Indians  6.10


Decision of district court of the Navajo Nation that tribe had exclusive jurisdiction over adoption proceeding and that Indian child was domiciled on reservation was not entitled to full faith and credit by state court, where determination by district court was made some four and one-half years after consent for adoption was given by child's mother in state court, and after extensive evidence was presented on domicile issue following a substantial period of total inaction and inattention to the matter by the tribe.  Navajo Nation v. District Court for Utah County, Fourth Judicial Dist., State of Utah, D.Utah 1985, 624 F.Supp. 130, affirmed 831 F.2d 929.  Judgment  829(3)


Under Indian Child Welfare Act, state court must give full faith and credit to public acts, records and judicial proceedings of Indian tribe to same extent that state court gives full faith and credit to those of any other entity; however, statute does not require state court to give absolute deference to tribal court order regardless of circumstances.  Matter of Adoption of T.R.M., Ind.1988, 525 N.E.2d 298, rehearing denied, certiorari denied 109 S.Ct. 2072, 490 U.S. 1069, 104 L.Ed.2d 636.  Indians  6.5


All courts of United States must give full faith and credit to child custody determinations made by tribal courts to same extent that full faith and credit are given to decisions of any other entity, regardless of whether tribal jurisdiction over child custody issues is concurrent with or exclusive of state court jurisdiction.  In re Interest of C.W., Neb.1992, 479 N.W.2d 105, 239 Neb. 817.  Indians  6.6(1)


21. Waiver of objections


Non-Indian grandmother of non-Indian child waived any objection to jurisdiction of tribal court when she obtained custody through tribal court and turned to that court to alter her custody arrangement.  LaBeau v. Dakota, W.D.Mich.1993, 815 F.Supp. 1074.  Indians  6.8


Indian child's failure to timely object to state's proposed written findings of fact and conclusions of law in custody proceeding did not prevent her from raising objections on appeal, where state did not serve child with proposed findings of fact and conclusions of law until after they had been signed by court.  People in Interests of M.C., S.D.1993, 504 N.W.2d 598.  Indians  6.6(3)


22. Adoption proceedings--Generally


ICWA applied to petition for adoption of children of Indian mother and deceased non-Indian father filed by father's sister and her husband, even though child resided with father and paternal aunt at time of father's death and thus was not part of "Indian family";  ICWA did not impose any requirement that proceedings involved "Indian family" or that child have any particular contact with tribe or tribal heritage, for ICWA to apply, and there was no dispute that children were "Indian children" involved in "child custody" proceedings.  In re Adoption of S.S., Ill.App. 2 Dist.1993, 622 N.E.2d 832, 190 Ill.Dec. 802, 252 Ill.App.3d 33, appeal allowed 631 N.E.2d 709, 197 Ill.Dec. 487, 154 Ill.2d 560, reversed 657 N.E.2d 935, 212 Ill.Dec. 590, 167 Ill.2d 250, certiorari denied 116 S.Ct. 1320, 517 U.S. 1104, 134 L.Ed.2d 472. Indians  6.10


Under the Indian Child Welfare Act, trial court did not have authority to transfer to tribal court jurisdiction of adoption proceedings involving Native American child who did not reside and was not domiciled on reservation, as adoption proceeding was not "foster care placement" proceeding or "termination of parental rights" proceeding within meaning of Act, though such proceedings had preceded filing of adoption petition.  Matter of J.B., Okla.App. Div. 3 1995, 900 P.2d 1014.  Indians  6.10


23. ---- Notice, adoption proceedings


Indian Child Welfare Act (ICWA) did not provide tribe with right to notice of private, voluntary adoption proceeding involving Indian child.  Navajo Nation v. Superior Court of State of Wash. for Yakima County, E.D.Wash.1999, 47 F.Supp.2d 1233, affirmed 331 F.3d 1041.  Indians  6.10


24. Paternity proceedings


This section deals with the adoption and foster care of Indian children, but does not deal with and, hence, does not preclude a paternity determination and child support enforcement when a state is a party and the other party is an Indian.  State ex rel. Dept. of Human Services v. Jojola, N.M.1983, 660 P.2d 590, 99 N.M. 500, appeal dismissed, certiorari denied 104 S.Ct. 49, 464 U.S. 803, 78 L.Ed.2d 69.


25. Review


Federal courts do not have jurisdiction to review child custody decisions that are within jurisdiction of tribal court.  LaBeau v. Dakota, W.D.Mich.1993, 815 F.Supp. 1074.  Federal Courts  1141


25 U.S.C.A. § 1911, 25 USCA § 1911



Approved 07-28-05

 

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