| (Cite
as: 1981 WL 157271 (Wis.A.G.))
Office
of the Attorney General
State
of Wisconsin
*1
OAG 60-81
November
23, 1981
CAPTION:
Jurisdictional questions relating to the implementation of the Indian Child
Welfare Act (25 U.S.C. sec. 1901 et seq.) discussed.
Donald
E. Percy
Secretary
Department
of Health and Social Services
One
West Wilson Street
Madison,
Wisconsin 53702
Dear
Mr. Percy:
You have asked for my opinion regarding the interpretation of
several jurisdictional
provisions of the Indian Child Welfare Act of 1978 (ICWA),
92 Stat. 3069, 25 U.S.C. sec. 1901 et seq. You
ask:
1. What jurisdiction do the Indian tribes and the state
have over child custody proceedings involving Indian children who reside
or are domiciled within the reservation of a PL 280,
Wisconsin Indian tribe or of the non-PL 280 Wisconsin Menominee
Tribe? Is the tribes' jurisdiction concurrent or exclusive as to
the state?
The jurisdictional relationship between the state and the Indian tribes
over domestic relations matters involving tribe members is not easily
defined. The following analysis will show that in some situations
and under varying circumstances both state and tribal courts may
have jurisdiction over certain such matters.
Indian tribes are 'a separate people, with the power of
regulating their internal and social relations.' United States v. Kagama,
118 U.S. 375, 381- 82 (1886). One such retained power
is a tribe's right to regulate the domestic relations of
its members. Fisher v. Dist. Court of Sixteenth Jud. Dist.,
424 U.S. 382 (1976); Conroy v. Conroy, 575 F.2d 175
(8th Cir. 1978); Dept. of Interior, Federal Indian Law, at
395 (1966). Thirty years after Kagama, the United States Supreme
Court again explained that '[a]t an early period it became
the settled policy of Congress to permit the personal and
domestic relations of the Indians with each other to be
regulated . . . according to their
tribal customs and laws.' United States v. Quiver, 241 U.S.
602, 603- 04 (1916).
In Williams v. Lee, 358 U.S. 217, 220 (1959), the
Court reaffirmed 'the right of [Indian tribes] to make their
own laws and be ruled by them,' by declaring that
states should refrain from exercising jurisdiction where essential tribal relationships
are involved. Family matters, including child custody, involving members domiciled
or living on the reservation, are essential tribal relations. See
Fisher; Wisconsin Potowatomies, etc. v. Houston, 393 F. Supp. 719
(W. D. Mich. 1973); Matter of Adoption of Buehl, 87
Wash. 2d 649, 555 P.2d 1334 (1976); Wakefield v. Little
Light, 276 Md. 333, 347 A.2d 228 (1975); State v.
Superior Court, 57 Wash. 2d 181, 356 P.2d 985 (1960);
and In re Colwash, 57 Wash. 2d 196, 356 P.2d
994 (1960). Also see 37 Op. Att'y Gen. 213 (1948)
concluding that state law does not apply to domestic relations
of Indians on reservations.
The general rule is that before state jurisdiction can be
extended over tribe members on a reservation it must be
specifically authrized by federal legislation. McClanahan v. State Tax Commission
of Arizona, 411 U.S. 164 (1973); Iron Crow v. Oglala
Sioux Tribe of Pine Ridge Res., 231 F.2d 89 (8th
Cir. 1956). The ICWA is the only act of Congress
expressly dealing with Indian child custody proceedings. It provides: '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.' 25 U.S.C.
sec. 1911(a).
*2
Although the act's definition of 'child custody proceeding' is extremely
broad, it excludes delinquency actions or placements based upon an
act which, if committed by an adult, would be deemed
a crime. Also excluded are divorce proceedings involving the award
of custody to one of the parents. This opinion therefore
will apply only to the domestic relations matters covered by
the ICWA.
The first question that must be considered is whether Wisconsin
has been 'otherwise vested' with jurisdiction in child custody matters
by existing federal law. For the reasons stated hereinafter, it
is my opinion that except in limited circumstances the state
has not been granted general jurisdiction over child custody matters
involving Indian children who reside or are domiciled within a
reservation. The limited exception is based on a federal statute
and the exercise of state sovereign powers in such matters.
The only federal statute which may grant the state some
jurisdiction in such matters is Pub. L. No. 280 (67
Stat. 558, 28 U.S.C. sec. 1360, 18 U.S.C. sec. 1162),
which was enacted on August 15, 1953. This statute gave
the State of Wisconsin limited civil and general criminal jurisdiction
in 'all Indian country within the state except the Menominee
Reservation.' The Menominee were subsequently
brought within the coverage of Pub. L. No. 280, but
were removed again effective March 1, 1976. See La Tender
v. Israel, 584 F.2d 817, 821 (7th Cir. 1978). It
is therefore clear that no federal statute authorizes the State
of Wisconsin to exercise child custody jurisdiction over the Menominee
Reservation.
It is my opinion that Pub. L. No. 280 (28
U.S.C. sec. 1360(a)) does not grant general jurisdiction over child
custody matters to Wisconsin courts. The courts have narrowly construed
the legislative grant of civil jurisdiction to the states under
Pub. L. No. 280, which provides in part that certain
named states 'shall have jurisdiction over civil causes of action
between Indians or to which Indians are parties.'
In Bryan v. Itasca Cty., Minnesota, 426 U.S. 373 (1976),
the United States Supreme Court stated unequivocally that the Pub.
L. No. 280 reference to 'civil causes of action' did
not confer civil regulatory jurisdiction on the states. Although the
court did not define 'civil causes of action,' it noted
one commentator's suggestion that:
Congress intended 'civil laws' to mean those laws which have
to do with private rights and status. Therefore, 'civil laws
. . . of general application to private persons or
private property' would include the laws of contract, tort, marriage,
divorce, insanity, descent, etc., but would not include laws declaring
or implementing the states' sovereign powers, such as the
power to tax, grant franchises, etc.
Bryan,
426 U.S. at 384 fn. 10. The Court concluded that
the intention of Congress in extending civil jurisdiction to states
was to 'redress the lack of adequate Indian forums for
resolving private legal disputes between reservation Indians, and between Indians
and other private citizens, by [sic] permitting the courts of
the States to decide such disputes.' 426 U.S. at 383.
The Court noted (Id. at 389) that Congress conditioned the
exercise of this limited jurisdictional grant by requiring, among other
things, that states accord 'full force and effect' to any
tribal ordinance or custom 'heretofore or hereafter adopted by an
Indian Tribe . . . if not inconsistent with any
applicable civil law of the State.' 28 U.S.C. sec. 1360(c).
(Compare 25 U.S.C. sec. 1911(d), which provides: '[E]very State .
. . shall give full faith and credit to the
public acts, records, and judicial proceedings of any Indian tribe
applicable to Indian child custody proceedings.') The Court concluded that
Pub. L. No. 280 was not enacted to subordinate Indians
to the full panoply of state civil regulatory powers which
would destroy tribal self-government. Id. at 388. Also see, 65
Op. Att'y Gen. 276 (1976) and 69 Op. Att'y Gen.
183 (1980).
*3
Your question does not differentiate among the different and varied
child custody proceedings that may arise. It is assumed, for
purposes of this opinion, that your concern is with those
proceedings that involve some aspect of
the state's regulatory jurisdiction such as involuntary termination of parental
rights. By comparison, where the proceeding is not between the
state and an individual, but rather primarily involves only private
persons as in a voluntary foster care placement, state law
may be applied under Pub. L. No. 280's jurisdictional grant.
Since Pub. L. No. 280 does not provide a basis
for the state to exercise regulatory jurisdiction in child custody
matters, it is necessary to consider whether there is some
other basis upon which the state can act, i.e., whether
there is any other source of federal law which vests
such jurisdiction in the state.
In White Mountain Apache Tribe v. Bracker, 448 U.S. 136
(1980), the United States Supreme Court defined two independent barriers
to the assertion of state regulatory authority over tribe members
and reservations. One is infringement on the right of reservation
Indians to make their own laws and be ruled by
them (Williams v. Lee, 358 U.S. 217 (1959)), and the
other is preemption by federal law.
Federal and state case law establishes that the exercise of
state jurisdiction over most custody matters involving Indian children on
the reservation infringes the right of tribe members to govern
themselves. In Santa Clara Pueblo v. Martinez, 436 U.S. 49,
59 (1978), the United States Supreme Court declared that in
matters involving domestic relations:
[W]e have recognized that 'subject[ing] a dispute arising on the
reservation
among reservation Indians to a forum other than the one
they have established for themselves,' Fisher v. District Court, 424
U.S. 382, 387- 388, 96 S.Ct. 943, 947, 47 L.Ed.2d
106 (1976), may 'undermine the authority of the tribal cour[t]
. . . and hence . . . infringe on
the right of the Indians to govern themselves.' Williams v.
Lee, 358 U.S., at 223, 79 S.Ct., at 272.
Other
courts have said "there can be no greater threat to
'essential tribal relations,' and no greater infringement on the right
of the . . . [t]ribe to govern themselves than
to interfere with tribal control over the custody of their
children." Matter of Adoption of Buehl, 87 Wash. 2d at
662, 555 P.2d at 1342 (1976); Wakefield, 347 A.2d at
237-38. Also see Wisconsin Potowatomies, etc., 393 F. Supp. at
730, '[i]f tribal sovereignty is to have any meaning at
all at this juncture of history, it must necessarily include
the right . . . to provide for the care
and upbringing of its young, a sine qua non to
the preservation of its identity.'
It is my understanding that most tribes in Wisconsin have
adopted procedures to handle some child custody proceedings under the
ICWA as well as domestic relations matters not covered by
the Act. It is therefore my opinion that the exercise
of state regulatory jurisdiction over tribe members residing on a
reservation where the tribe is exercising jurisdiction over child custody
matters constitutes an impermissible infringement upon tribal sovereignty. If a
tribe is not exercising such jurisdiction, it is unlikely that
a court would find that state action infringes upon that
tribe's sovereignty.
*4
The ICWA also operates to preempt state action in custody
matters involving Indian children beyond those areas of authority delegated
under the Act. The federal policy behind the ICWA is
clearly that of 'keeping Indian children with their families, deferring
to tribal judgment on matters concerning the custody of tribal
children, and placing Indian children who must be removed from
their homes within their own families or Indian tribes.' Guidelines
for State Courts, (hereinafter, Guidelines) 44 Fed. Reg. 67,592 (1979).
The Code of Federal Regulations acknowledges that the extent to
which federal acts (such as Pub. L. No. 280) have
subjected Indian child custody proceedings to state jurisdiction is unsettled
and therefore the ICWA includes a provision which allows tribes
to reassume exclusive jurisdiction over such matters (25 U.S.C. sec.
1918) 'without relinquishing their claim that no federal statute had
ever deprived them of that jurisdiction.' 25 C.F.R. sec. 13.1(b)
(1980).
The Lac Courte Oreilles Band of Lake Superior Chippewa is
the only tribe in Wisconsin that has utilized 25 U.S.C.
sec. 1918 to 'reassume' exclusive jurisdiction over Indian child custody
proceedings. The tribe's petition was granted effective May 5, 1981,
46 Fed. Reg. 15,579 (1981).
Although utilizing this procedure would remove any uncertainty regarding the
effect
of Pub. L. No. 280 in this subject area, it
is my opinion that it is unnecessary, except perhaps for
proceedings that do not involve civil regulatory jurisdiction. For nonregulatory
proceedings, such as voluntary termination of parental rights, the tribal
courts, and state courts pursuant to Pub. L. No. 280,
have concurrent jurisdiction. To eliminate this limited concurrent jurisdictional relationship
over private child custody matters covered by the ICWA and
within the Pub. L. No. 280 definition of 'civil causes
of action,' the tribe would either have to comply with
25 U.S.C. sec. 1918 and reassume exclusive jurisdiction or the
state would have to retrocede its civil causes of action
jurisdiction pursuant to 25 U.S.C. sec. 1323(a). As already indicated,
the state retroceded all Pub. L. No. 280 jurisdiction over
the Menominee Tribe effective March 1, 1976.
The history behind the ICWA lends additional support to the
opinion expressed herein. The history of state intervention in Indian
child custody proceedings nationally has shown state courts to be
insensitive to Indian values and culture. Because state officials in
some areas of the United States have tended to misinterpret
Indian child rearing practices, statistics show that a disproportionate number
of Indian children have been removed from their homes in
comparison to non-Indian children. For this reason the ICWA confirmed
that Indian tribes rather than states play the central role
in child custody proceedings involving Indian children. S. Rep. No.
597, 95th Cong., 1st Sess. 35
(1977).
Reading the ICWA against 'a backdrop of Indian sovereignty,' McClanahan
v. State Tax Commission of Arizona, 411 U.S. 164, 173
(1976), and applicable federal and state case law, and taking
into consideration tribal assertion of jurisdiction, leads to the inescapable
conclusion that 'Pub. L. No. 280 and non-Pub. L. No.
280 Wisconsin Indian tribes' have exclusive regulatory jurisdiction over child
custody proceedings involving Indian children who reside or are domiciled
within the reservation.
*5
The term 'domicile' in the ICWA is a legal concept
that depends on intent. A person does not abandon an
old domicile until a new one has been established. An
Indian child may be domiciled on a reservation without being
physically present there. Likewise an Indian child may be residing
on the reservation even though legally domiciled off the reservation.
If the parent with whom the child lives maintains strong
ties to the tribe and the reservation, then even though
the child is temporarily located off the reservation, his or
her domicile remains within it. See Wisconsin Potowatomies, etc. The
Guidelines, 44 Fed. Reg. 67,588 (1979), provide that the state
court shall determine the residence or domicile of the Indian
child. If either the residence or domicile is on a
reservation where the tribe exercises exclusive jurisdiction over child custody
proceedings, the proceeding in state court shall be dismissed.
2. What jurisdiction do the Indian tribes and the state
have over child custody proceedings involving Indian children who are
not residing or domiciled within the reservation of a PL
280 Wisconsin Indian tribe or of the non-PL 280 Wisconsin
Menominee Tribe? Is the state's jurisdiction exclusive or concurrent as
to the tribes?
The Indian Child Welfare Act (25 U.S.C. sec. 1911(a)) provides
that if an Indian child has previously resided or been
domiciled on a reservation, the state court must contact the
tribe to see if the child is a ward of
the tribal court. If it is determined that the child
is a ward of the tribal court, the tribe has
exclusive jurisdiction and the proceeding must be dismissed.
Any child who is not a ward of the tribal
court who is off the reservation has generally the same
rights and is subject to the jurisdiction of state courts
to the same extent as non-Indian citizens. Mescalero Apache Tribe
v. Jones, 411 U.S. 145 (1973); See F. Cohen, Handbook
of Federal Indian Law, at 119 (1942 ed.). Cohen points
out that there is an exception to this general rule.
'If the subject matter of the transaction is a subject
matter over which Congress has asserted its constitutional power, the
state must yield to the superior power of the nation.'
Id.
Wisconsin normally would have exclusive jurisdiction over child custody proceedings
involving children not domiciled or residing on a reservation. In
cases involving foster care placement or termination of parental rights,
the state,
however, may be required to transfer jurisdiction to the child's
tribe because of federal preemption. The ICWA (25 U.S.C. sec.
1911 (b)) provides:
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.
*6
According to the ICWA's legislative history, the intention of this
subsection was to ensure that state courts would apply a
modified doctrine of forum non conveniens in these two types
of proceedings to ensure that the rights of the child,
the parent or custodian, and the tribe are protected. H.R.
Rep. No. 1386, 95th Cong., 2d Sess. 21, reprinted in
[1978] U.S. Code Cong. & Ad. News 7530, 7544. The
doctrine generally gives a court discretionary authority to decline jurisdiction.
See, e.g., Koster v. Lumbermens Mutual Casualty Co., 330 U.S.
518, 527 (1947); Gulf Oil Corp. v. Gilbert, 330 U.S.
501, 507 (1947). Ordinarily, courts apply the doctrine to refuse
jurisdiction and to transfer the action to an alternate forum.
See, e.g., Herbst v. Able, 278 F. Supp. 664, 666
(S.D. N.Y. 1967); Grubs v. Consolidated
Freightways, Inc., 189 F. Supp. 404, 408 (D. Mont. 1960).
'Good cause' for not transferring a proceeding to tribal court
may include, for example, the various criteria set forth in
the Guidelines:
(a) Good cause not to transfer the proceeding exists if
the Indian child's tribe does not have a tribal court
as defined by the Act to which the case can
be transferred.
(b) Good cause not to transfer the proceeding may exist
if any of the following circumstances exists:
(i)
The proceeding was at an advanced stage when the petition
to transfer was received and the petitioner did not file
the petition promptly after receiving notice of the hearing.
(ii)
The Indian child is over twelve years of age and
objects to the transfer.
(iii)
The evidence necessary to decide the case could not be
adequately presented in the tribal court without undue hardship to
the parties or the witnesses.
(iv)
The parents of a child over five years of age
are not available and the child has had little or
no contact with the child's tribe or members of the
child's tribe.
Guidelines,
44 Fed. Reg. 67,591 (1979). The federal government has thus
qualified the power of the state in proceedings involving the
foster care placement
of, or termination of parental rights to, Indian children not
domiciled or residing within the reservation of the Indian child's
tribe by requiring transfer to tribal court in the absence
of good cause to the contrary or objection by either
parent.
In other types of child custody proceedings relating to Indian
children not domiciled or residing within the reservation of the
Indian child's tribe, the Act does not require transfer to
tribal court. (See discussion following question no. 4.)
3. May a state court transfer jurisdiction over a foster
care placement or termination of parental rights proceeding under 25
USC § 1911(b)
to any Wisconsin tribe or only to the Menominee Tribe
if the conditions of § 1911(b)
are met?
For the reasons already stated, a state court must transfer
jurisdiction over a foster care placement or termination of parental
rights proceeding under 25 U.S.C. sec. 1911(b) to any Wisconsin
tribe if the conditions of that section are met.
*7
4. May a state court transfer jurisdiction to a tribe
over a child custody proceeding involving an Indian child if
the child resides or is domiciled within the tribe's reservation?
A state court must transfer jurisdiction to the Menominee Tribe
and the Lac Courte Oreilles Band over any child custody
proceeding involving an Indian child
if the child resides or is domiciled within the respective
reservation. Similarly, a state court must transfer jurisdiction to the
Indian tribes over a child custody proceeding involving an Indian
child if the child resides or is domiciled within the
reservation and the case involves the exercise of state regulatory
jurisdiction. Except for matters arising on the Menominee and Lac
Courte Oreilles Reservations, it is within the discretion of the
court in those proceedings which do not involve state regulatory
jurisdiction whether to defer a matter to tribal court. Since
the tribe member has voluntarily chosen to utilize the state
court rather than the tribal court it is unlikely that
there would be a transfer although the court could apply
the doctrine of forum non conveniens in appropriate cases of
this nature as well. (See discussion in response to question
no. 2.)
5. May a state court transfer jurisdiction to a tribe
over a proceeding for preadoptive or adoptive placement of an
Indian child?
The answer to this question depends on whether or not
the child resides or is domiciled within the reservation of
the child's tribe. The answer also is affected by whether
the proceeding is voluntary or involuntary.
Preadoptive and adoptive placements are included within the term 'child
custody proceeding.' 25 U.S.C. sec. 1903. Subsection (a) of 25
U.S.C. sec. 1911, which deals with cases where a child
is domiciled on the reservation, applies to 'any child custody
proceeding.' As already indicated, if
the Indian child resides or is domiciled within a reservation,
a state court must transfer jurisdiction to the tribe over
these two types of proceedings if the proceeding depends upon
the exercise of regulatory jurisdiction as in any involuntary proceeding.
Tribe members subject to Pub. L. No. 280, of course,
retain the right in voluntary child custody proceedings to utilize
state courts and state law in the absence of applicable
tribal law. See 28 U.S.C. sec. 1360(c). In the event
a tribe reassumes jurisdiction pursuant to the procedures set forth
in 25 U.S.C. sec. 1918, jurisdiction which it now shares
with the state under Pub. L. No. 280 (28 U.S.C.
sec. 1360), tribal courts would have exclusive jurisdiction in such
matters.
If the Indian child is not residing or domiciled within
the reservation, 25 U.S.C. sec. 1911(b) applies. Since subsection (b)
mentions only proceedings for foster care placement or termination of
parental rights, the Act does not require state courts to
transfer a proceeding for preadoptive or adoptive placement of an
Indian child not residing or domiciled on the reservation. The
court, of course, could apply the doctrine of forum non
conveniens in these cases also.
*8
6. May a state court transfer jurisdiction to a tribe
over a proceeding under 25 USC § 1911(b)
if the tribal court, as defined in 25 USC § 1903(12),
does not have jurisdiction over child custody proceedings?
25 U.S.C. sec. 1911(b) provides that a state court shall
transfer jurisdiction
to a tribe 'in the absence of good cause to
the contrary.' The Guidelines, published by the Department of Interior,
(quoted above; see question no. 2), states that '[g]ood cause
not to transfer the proceeding exists if the Indian child's
tribe does not have a tribal court as defined by
the Act.' 44 Fed. Reg. 67,591 (1979). The definition of
'tribal court' in 25 U.S.C. sec. 1903(12) is intended to
include tribally established administrative tribunals, commissions, or any other alternative
tribal adjudicatory mechanism given jurisdiction by the tribe over child
welfare matters. S. Rep. No. 597, 95th Cong., 1st Sess.
43 (1977). If a tribe has not established any mechanism
for exercising jurisdiction over child custody proceedings, a state court
could find that such fact constitutes good cause for not
transferring jurisdiction. (Also see discussion infra regarding questions 7 and
8.)
Your final two questions are interrelated and therefore they will
be considered together.
7. Which Wisconsin tribes, if any, do not have tribal
courts with jurisdiction over child custody proceedings?
8. What criteria should be used to determine whether a
tribal court has jurisdiction over child custody proceedings?
There appear to be at least two conditions that must
be met before a tribe can assume exclusive jurisdiction over
child custody proceedings under the ICWA.
First, the tribe's constitution (if it has a constitution) must
not disclaim jurisdiction over child custody proceedings. Second, the tribe
must have an established mechanism which has been given the
power to deal with child custody matters.
Typically, tribal constitutions make reference to very general powers although
often vaguely described. Whether an ambiguous phrase encompasses or delegates
a specific power is a matter of interpretation.
Indian tribes retain 'attributes of sovereignty over both their members
and their territory.' United States v. Mazurie, 419 U.S. 544,
557 (1975). A crucial attribute of sovereignty is a government's
right to interpret its own organizational documents. Recognizing this, federal
courts have ruled that they lack "any general power to
review and oversee the Tribal Courts in their resolution of
questions concerning the authority and power of Tribal Courts." Conroy,
575 F.2d at 177. Also see Federal Indian Law, at
403 (1966).
Since, '[t]he right of tribal self-government is ultimately dependent on
and subject to the broad power of Congress' (White Mountain
Apache Tribe, 448 U.S. at 143), it is necessary to
inquire whether the ICWA or any other federal act limits
a tribe's right to decide for itself if its constitution
disclaims jurisdiction over child custody matters. The ICWA does not
reach this issue.
*9
The 1934 Indian Reorganization Act (IRA), however, does deal with
the organization of tribal governments. 25 U.S.C. sec. 476. Nothing
in this statute
(nor in the federal regulations enacted under it) qualifies inherent
tribal governmental authority over child custody proceedings involving tribe members
domiciled or residing on the reservation. As already indicated, an
Indian tribe has inherent authority to determine what meaning attaches
to its own constitutional language. See Tom v. Sutton, 533
F.2d 1101, 1106 (9th Cir. 1976). It is, therefore, highly
unlikely that a state court would have reason to question
the governmental power of a tribe under its constitution.
Once it is determined that a tribe's constitution does not
disclaim jurisdiction over child custody matters, one can turn to
the question of whether the tribe has a 'tribal court,'
as defined in 25 U.S.C. sec. 1903(12):
'[T]ribal court' means a court with jurisdiction over child custody
proceedings and which is either a Court of Indian Offenses,
a court established and operated under the code or custom
of an Indian tribe, or any other administrative body of
a tribe which is vested with authority over child custody
proceedings.
State
courts will give great weight to a tribe's own determination
as to its capacity to exercise jurisdiction under the ICWA.
The above mentioned Guidelines support giving the tribes primary responsibility
for judging the adequacy of their own institutions. '[R]eservation socioeconomic
conditions and the perceived adequacy of tribal institutions are not
to be taken into account
in making good cause determinations . . . the Department
believes such judgments are best made by tribal courts.' 44
Fed. Reg. 67,592 (1979). The Guidelines point out that this
approach is in keeping with the established congressional policy under
the ICWA of 'preferring tribal control over custody decisions affecting
tribal members.'
Sincerely
yours,
Bronson
C. La Follette
Attorney
General
70 Wis. Op. Atty. Gen. 237, 1981 WL 157271 (Wis.A.G.)
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