Escolar Documentos
Profissional Documentos
Cultura Documentos
ARTICLES
PATRICE H. KUNESH*
Abstract: The year 2008 marks the thirtieth anniversary of the enactment of
the Indian Child Welfare Act (ICWA), one of the most dynamic pieces of
legislation in the field of federal Indian affairs, which irrevocably changed
the traditional jurisdictional prerogatives of states in child custody matters.
ICWAs jurisdictional scheme vests exclusive jurisdiction over Indian
children who reside or are domiciled on the reservation, and grants states
concurrent jurisdiction over Indian children located off the reservation. A
crucial but often overlooked facet of ICWAs jurisdictional scheme is tribal
wardship determinations, a remarkably constructive provision that
establishes exclusive tribal jurisdiction over Indian children who are wards
of the tribal courtirrespective of the childs domicile. This jurisdictional
construct directly conflicts with the normative notions of state court
jurisdiction over family relations. And the cross-hatching of state and tribal
interests in off-reservation child welfare matters has engendered serious
tension and questions about the precise contours of tribal sovereignty and the
* Assistant Professor of Law, University of South Dakota School of Law. Early drafts
of this Article were presented at the Indigenous Law & Policy Center 3rd Annual
Indigenous Law Conference at Michigan State University College of Law (March 16, 2007)
and at the 2nd Emerging Indian Law Scholars Roundtable at Lewis & Clark Law School
(July 7, 2007). The author is grateful to Professors Alex Tallchief Skibine, Gerald Torres,
Frank Pommersheim and Robert Miller, the faculty participants in the Emerging Indian Law
Scholars Roundtable, for their helpful comments and suggestions, and to Kelsey Collier-
Wise for her editorial assistance.
15
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INTRODUCTION
In 1974, Senator James Abourezk of South Dakota opened the first of
a series of congressional hearings on what was to become one of the most
dynamic pieces of legislation in federal Indian affairs. History would prove
both the reason and the resolution for the crisis exposed in these
investigations:
[F]or decades Indian parents and their children have been at the
mercy of arbitrary or abusive action of local, State, Federal, and
private agency officials. . . .
Four years later, after extensive and often emotional testimony about
the pervasive and unchecked removal of thousands of Indian children from
their families, Congress enacted the Indian Child Welfare Act of 1978
(ICWA or the Act),2 vowing to safeguard Indian children from further
injury and to strengthen the legal authority of tribes in child welfare
matters.3 These were not lofty policy aspirations. Through ICWAs
commanding substantive and procedural requirements on state court
proceedings and its distinct jurisdictional scheme centered on tribal courts,4
Congress has irrevocably changed the legal landscape between tribes and
states in the past thirty years.
Jurisdiction to determine the Indian childs placement under ICWA is
defined by the childs residency. The Act lodges exclusive authority over
Indian child custody proceedings in tribal courts when the Indian child
resides or is domiciled on an Indian reservation, and concurrent, but
presumptively tribal jurisdiction,5 when the Indian child lives off the
Insular Affairs, 93d Cong. 1-2 (1974) (statement of Sen. James Abourezk) [hereinafter 1974
Senate Hearings]. Additional hearings were held before the Senate and the House of
Representatives, and Reports were issued by both legislative chambers. Legislative material
cited in this Article is referred to as follows: Hearings on S. 1214 Before the S. Select
Comm. on Indian Affairs, 95th Cong. (1977) [hereinafter 1977 Senate Hearings]; Hearings
on S. 1214 Before the Subcomm. on Indian Affairs and Public Lands of the H. Comm. on
Interior and Insular Affairs, 95th Cong. (1978) [hereinafter 1978 House Hearings]; S. REP.
NO. 95-597 (1977) [hereinafter Senate Report]; H.R. REP. NO. 95-1386, as reprinted in 1978
U.S.C.C.A.N. 7530 [hereinafter House Report].
2. Indian Child Welfare Act of 1978, Pub. L. No. 95-608, 92 Stat. 3069 (1978),
(codified as amended at 25 U.S.C. 1901-1963 (2000)).
3. Congress underscored its resolve in the Acts strongly worded findings: [T]here is
no resource that is more vital to the continued existence and integrity of Indian tribes than
their children and that the United States has a direct interest, as trustee, in protecting Indian
children who are members of or are eligible for membership in an Indian tribe, 25 U.S.C.
1901(3), and further, the States, exercising their recognized jurisdiction over Indian child
custody proceedings through administrative and judicial bodies, have often failed to
recognize the essential tribal relations of Indian people and the cultural and social standards
prevailing in Indian communities and families. Id. 1901(5).
4. For example, ICWA mandates that state courts place Indian children with extended
family members or other Indian families absent good cause to the contrary, id. 1915(a)-
(b), and imposes heightened burdens of proof for the removal of children and termination of
parental rights (clear and convincing evidence and beyond reasonable doubt, respectively,
supported by qualified expert testimony). Id. 1912(e)-(f). In addition, ICWA requires
parents and tribes to be given notice of state court proceedings, id. 1912(a), grants tribes
the right to intervene in such proceedings, id. 1911(c), directs appointment of counsel for
indigent parents, id. 1912(b), and obliges states to recognize tribal court decisions and
orders. Id. 1911(d).
5. Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 36 (1989) (At the
heart of the ICWA are its provisions concerning jurisdiction over Indian child custody
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proceedings.).
6. 25 U.S.C. 1911(a).
7. 25 U.S.C. 1911(a) provides: 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.
8. As domestic, dependent nations, Indian nations legally exist separate from states and
the federal government and are unconstrained by the Federal Constitution. Santa Clara
Pueblo v. Martinez, 436 U.S. 49, 56 (1978). Thus, the Full Faith and Credit Clause of the
Constitution, which requires states to recognize one anothers laws and judgments, is
inapplicable to Indian tribes. See U.S. CONST. art. IV, 1. The ICWA supplants this
convention by requiring that full faith and credit be given to the judicial proceedings of
Indian tribes. 25 U.S.C. 1911(d).
9. Natl Farmers Union Ins. Co. v. Crow Tribe of Indians, 471 U.S. 845, 851 (1985)
(As we have often noted, Indian tribes occupy a unique status under our law. At one time
they exercised virtually unlimited power over their own members as well as those who were
permitted to join their communities. (footnote omitted) (citing United States v. Wheeler,
435 U.S. 313, 323 (1978); United States v. Mazurie, 419 U.S. 544, 557 (1975); Turner v.
United States, 248 U.S. 354, 354-55 (1919))).
10. As distinct, independent political communities, Worcester v. Georgia, 31 U.S. (6
Pet.) 515, 519 (1832), tribes retain inherent power to regulate their internal and social
relations. United States v. Kagama, 118 U.S. 375, 381-82 (1886); accord United States v.
Wheeler, 435 U.S. 313, 322 (1978); see also FELIX S. COHEN, COHENS HANDBOOK OF
FEDERAL INDIAN LAW 4.03 (Nell Jessup Newton et al. eds., Matthew Bender & Co., Inc.
2005); infra note 53 and accompanying text. Tribes traditionally have been regarded as
having sole power to make their own substantive law in internal matters such as
membership, domestic relations, and probate, Montana v. United States, 450 U.S. 544, 564
(1981), and to enforce those laws in their own forums. Williams v. Lee, 358 U.S. 217, 223
(1959). In United States v. Wheeler, the Supreme Court explained that the powers of self-
government, including the power to prescribe and enforce internal criminal laws, are of a
different type. They involve only the relations among members of a tribe. 435 U.S. at 326.
In areas involving external relations, tribal sovereignty has been found to be implicitly
divested, principally in activities deemed inconsistent with their dependent status, such as
alienation of tribal lands, relations with foreign nations, and tribal criminal jurisdiction over
non-Indians. Id.
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from the reservation.11 This jurisdictional construct has evolved from two
distinct concepts of tribal jurisdiction. The first is premised on the
principles highly protective of tribal self-government over internal
reservation affairs and essential tribal relations, as enunciated in Williams
v. Lee12 and McClanahan v. Arizona State Tax Commission.13 The other,
articulated in Mescalero Apache Tribe v. Jones,14 recognizes the supremacy
of state law over the off-reservation conduct of Indians. Tribal wardship
determinations transcend reservation borders and defy definite geographic-
based jurisdictional boundary marking.15 Not surprisingly, the cross-
hatching of state and tribal jurisdictional interests in off-reservation Indian
child custody proceedings has inevitably led to conflict with the normative
I. JURISDICTIONAL ORIGINS
16. See Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 12 (2004) (Long ago we
observed that [t]he whole subject of the domestic relations of husband and wife, parent and
child, belongs to the laws of the States and not to the laws of the United States. (alteration
in original) (quoting In re Burrus, 136 U.S. 586, 593-94 (1890))).
17. See Roff v. Burney, 168 U.S. 218, 222-23 (1897) (describing tribal authority to
determine membership); Cherokee Intermarriage Cases, 203 U.S. 76, 81 (1906) (describing
tribal authority to determine membership); United States v. Wheeler, 435 U.S. 313, 322 n.18
(1978) ([U]nless limited by treaty or statute, a tribe has the power . . . to regulate domestic
relations among tribe members.) (citations omitted); Santa Clara Pueblo v. Martinez, 436
U.S. 49, 55-56 (1978) (as sovereign entities pre-dating the Federal Constitution, tribes have
power to make their own substantive law in internal matters such as inheritance,
membership, and domestic relations).
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boundaries of their lands, but they also possess the inherent political power
to regulate their internal and social relations.18 It soon became settled
policy that tribes regulated their personal and domestic relations
according to their tribal customs and laws.19 Tribes have resolutely
defended this right to make their own laws and be ruled by them,20 and
vigilantly guarded against state intrusion into essential tribal relations
involving tribal members and children.21
In re Lelah-Puc-Ka-Chee,22 decided in 1899, is one of the earliest
reported Indian child welfare cases involving a deliberate assault on such
essential tribal relations. Lelah-Puc-Ka-Chee was a young Indian girl who,
along with many other Indian children, was forcefully removed by the state
Indian agent from her home and family on the Sac and Fox Reservation in
Iowa to attend a boarding school away from the Reservation. The Indian
agent justified his actions by claiming that the children were neglected and
their parents were incapable of caring for them. The state court approved
the agents appointment as the Indian childrens guardian, giving him full
legal custody and authority to ensure their compliance with his boarding
school plans.23 Lelah-Puc-Ka-Chee, who was about eighteen years old and
married when she was taken away from her home and husband against her
will,24 filed a petition for a writ of habeas corpus in federal district court
seeking her release from the states custody and challenging the states
authority over her and the other Indian children.25
The federal district court accepted the petition and upon review of the
facts, condemned the agents removal of the children from their parents.
The court ruled that the state had no authority over Indian children residing
on the reservation, stating:
[C]ongress has not conferred upon the Indian agents and school
superintendents the power to take the Indian children by force
18. United States v. Mazurie, 419 U.S. 544, 557 (1975) (citing Worcester v. Georgia, 31
U.S. 515, 557 (1832) and quoting United States v. Kagama, 118 U.S. 375, 381-82 (1886));
see also supra note 10.
19. United States v. Quiver, 241 U.S. 602, 603-04 (1916).
20. Williams v. Lee, 358 U.S. 217, 220 (1959).
21. Fisher v. Dist. Court, 424 U.S. 382, 389 (1976) (holding that tribal court had
exclusive jurisdiction over adoption proceedings where all parties were tribal members and
reservation residents); Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 42
(1989) (tribal jurisdiction over Indian child custody proceedings has a strong basis in pre-
ICWA case law in the federal and state courts (citing Fisher, 424 U.S. 382)).
22. 98 F. 429 (N.D. Iowa 1899).
23. Id. at 431.
24. Id.
25. Id. at 430.
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26. Id. at 434. The federal court also warned the agent against coercing the parents of
the children, by withholding rations, annuities, or the like, into giving consent to the
removal of their children beyond the limits of the reservation. Id.
27. Id. Wholly disregarding this advice, the agent pursued a prosecution of one of the
Indian parents who helped some of the children escape from the boarding school. Upon
acquittal, the parent successfully sued the agent for false imprisonment. Peters v. Malin, 111
F. 244, 247, 256 (N.D. Iowa 1901).
28. Federal Indian policy during the period of the Lelah-Puc-Ka-Chee decision and a
good part of the twentieth century, promoted the collapse of Indian governments through the
allotment of their reservations and the break up of Indian families by sending Indian
children to boarding schools. See Andrea A. Curcio, Civil Claims for Uncivilized Acts:
Filing Suit Against the Government For American Indian Boarding School Abuses, 4
HASTINGS RACE & POVERTY L.J. 45, 55-59 (2006). For further discussion about boarding
schools, see infra note 124. Many tribes witnessed their reservation lands and resources
dwindle, including their most vital resource, their children and families, who were drawn to
work and educational opportunities outside the reservation, thereby re-designing tribal-
family relationships through more distant connections. See JAMES ABOUREZK, AMERICAN
INDIAN POLICY REVIEW COMMISSION: FINAL REPORT, THE INDIAN CHILD WELFARE ACT OF
1977 (1977), reprinted in Senate Report, supra note 1, at 51 [hereinafter AIPRC REPORT].
29. 393 F. Supp. 719 (W.D. Mich. 1973).
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30. Id. at 721-22. The children were enrolled in the Hannahville Indian Community,
where the family had lived together until the mother moved away with the children. One
night, the father, distraught from months of unemployment and marital problems, followed
his wife to her trailer home, shot her and his mother-in-law, and then killed himself. Id. at
722.
31. Id. at 722-24. The childrens paternal great uncle, President of the Council of the
Hannahville Indian Community at that time, filed a petition in state court to adopt the
children. The children, though, were made permanent wards of the state court and then
committed . . . to the Department of Social Services for admission to the Michigan
Childrens [sic] Institute for purposes of adoption. Id. The childrens paternal grandmother
also filed a petition for guardianship of the children.
32. Id. at 723.
33. See id. at 723-24.
34. See id. at 725-26. Under Potowatomie custom, if a child loses both parents, other
relatives automatically assume responsibility for the childs care under customary adoption
practices. The Potowatomies also follow a patrilineal custom with uncles assuming parental
and grandparent roles.
35. See Wisconsin Potowatomies of Hannahville Indian Community, 393 F. Supp. at
727-28.
36. 411 U.S. 145 (1973); see also supra note 14.
37. 411 U.S. 164 (1973); see also supra note 13.
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tribal self-government.38
The on-off-reservation jurisdictional dichotomy in these decisions
was readily apparent to the district court in Wisconsin Potowatomies, but
not easily applied. Asserting the rule of Mescalero Apache Tribe, the State
argued that the Tribes right to govern the conduct of its members was
limited to the geographical confines of the reservation.39 Under this
construct, the State properly exercised jurisdiction over the children since
they were taken into custody outside the Reservation. The court, however,
did not view the reservation as such a rigid jurisdictional boundary,
especially in light of 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.40 The question for the court,
then, was the transformation point of tribal sovereignty, from its most
robust and impervious when concerning tribal affairs within the
reservation, waning substantially in activities occurring outside the
reservation borders. As to tribal jurisdiction within the reservation, the
court emphatically stated: If tribal sovereignty is to have any meaning at
all at this juncture of history, it must necessarily include the right, within its
own boundaries and membership, to provide for the care and upbringing of
its young, a sine qua non to the preservation of its identity.41
The childrens presence off the reservation, however, raised deeper
concerns, not resolved by any formulistic jurisdictional rule and not
controlled solely by either the situs of the parents death or by their off-
reservation presence.42 The Williams-McClanahan construct provided the
court with the analytical framework to assess the competing tribal and state
jurisdictional interests. Considered in concert, the court found that the
substantial weight of the tribes interest in the childrens welfare, its
determination that the children were domiciled on the reservation,43 as well
as the authority of tribal laws and customs governing the custody of the
children,44 defeated the states jurisdiction claim and vested exclusive
38. McClanahan, 411 U.S. at 171-73, (following Williams v. Lee, 358 U.S. 217 (1959));
see supra notes 12 and 13.
39. Wisconsin Potowatomies of Hannahville Indian Community, 393 F.Supp. at 729.
40. Id. at 730 (quoting United States v. Quiver, 241 U.S. 602, 603-04 (1916)).
41. Id. at 730.
42. Id. at 731.
43. Id. at 732. Guided by the Restatement of Conflicts 15 (1934), the court found that
the childrens domicile remained on the Reservation, notwithstanding their residence with
their mother off the Reservation, since their mother did not have the requisite intent to
establish a permanent home off the reservation. Id.
44. Id. at 733. The court particularly noted the Tribes efforts to follow its traditions for
caring for orphaned children, which were continually thwarted by the state:
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C. Little Light
Two years later, in Wakefield v. Little Light,46 the Maryland Court of
Appeals similarly employed the Williams-McClanahan and Mescalero
constructs to evaluate its authority in an adoption proceeding involving an
Indian child who had been removed from the reservation by his non-Indian
foster parents. Initially, the Crow Tribal Court in Montana deemed Allie
Little Light, a member of the Crow Tribe of Montana, a ward of the court
following a dependency proceeding.47 With his mothers consent, the
Tribal Court temporarily placed Allie with the Wakefields, a non-Indian
couple familiar with him and his mothers situation, through a special
guardianship arrangement.48 Soon thereafter, the Wakefields left the Crow
Reservation with Allie and then filed a petition in Maryland state court
seeking permanent custody of Allie, despite his mothers objections and
requests for his return.49 Gail Little Light, Allies mother, challenged the
state courts jurisdiction contending that only the Tribal Court had
authority to determine Allies custody.50 Relying on the Mescalero Apache
Tribe rule that off the reservation, [an] Indian is subject to state law in
exactly the same fashion as any other citizen of this State,51 the
Wakefields argued that Allies residence with them off the Crow
Reservation removed any tribal interest in the matter.
The Maryland Court of Appeals disagreed with this assertion, finding
sound legal support for exclusive tribal jurisdiction in the principles
discussed above,52 as well as a contemporaneously decided Supreme Court
opinion that affirmed the independent authority [of tribes] over matters
that affect the internal and social relations of tribal life.53 Child-rearing is
one such relation deemed an essential tribal relation within the doctrine
espoused by the Supreme Court in Williams v. Lee.54 Finding that the
Crow Tribe possessed the requisite judicial authority to protect and
enforce such essential tribal relations,55 the court nonetheless wrestled
with the incongruity of the states and tribes interests in situations
involving Indian children found off the reservation.56 In these situations,
49. Id.
50. Id. at 230-31. Gail Little Light also petitioned the Crow Tribal Court to terminate the
Wakefields guardianship of Allie. In its order terminating the Wakefields guardianship,
the Tribal Court granted permanent custody of Allie to his mother and ordered the
Wakefields to surrender Allie to the Tribe. Id.
51. Id. at 231.
52. See id. at 233-36. The Maryland Court of Appeals cited a familiar litany of United
States Supreme Court Indian jurisprudence, including Worcester v. Georgia, 31 U.S. 515
(1832); In re Lelah-Puc-Ka-Chee, 98 F. 429 (N.D. Iowa 1899); United States v. Quiver, 241
U.S. 602 (1916); Williams v. Lee, 358 U.S. 217 (1959); Wisconsin Potowatomies of
Hannahville Community v. Houston, 393 F.Supp. 719 (W.D. Mich 1973); and McClanahan
v. State Tax Commn, 411 U.S. 164 (1973).
53. Wakefield, 347 A.2d at 233 (quoting United States v. Mazurie, 419 U.S. 544, 557
(1975) (upholding a congressional delegation to an Indian tribe to control the introduction
and distribution of alcoholic beverages into Indian country)).
54. Id. at 234.
55. Id. Similar to the federal court proceedings in Wisconsin Potowatomies, the
Maryland Court of Appeals examined the Crow Tribes Constitution and codes, as well as
the Tribes treaties with the United States and other federal statutes concerning the Tribes
powers of self-governance. See id.
56. See id. at 237-38 (citing United States ex rel. Cobell v. Cobell, 503 F.2d 790, 794
(9th Cir. 1974) (balancing state and tribes interest in off-reservation domiciled child,
concluding jurisdiction vested in state court)); see also Wisconsin Potowatomies of
Hannahville Indian Community, 393 F.Supp. at 730 (weighing interests of tribe and state
finding tribal jurisdiction based on childrens on-reservation domicile); Mescalero Apache
Tribe v. Jones, 411 U.S. 145, 147-48 (1973) (considering federal and state interests in
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D. In re Buehl
The Washington Supreme Court heard a similar jurisdictional dispute
a few years later in In re Adoption of Buehl,62 an adoption proceeding
initiated in the state court by an Indian childs tribal-court-appointed foster
parents. The action originated in the Blackfeet Tribal Court, which
removed Daniel Duckhead Buehl from his mothers custody, both members
of the Blackfeet Tribe and residents of the Blackfeet Reservation in
Montana, and temporarily placed him in foster care with the Andersons, an
Indian couple with significant ties to the tribal community.63 The court
laws, including its constitution, tribal codes, and traditional customs. The
purpose of this latter inquiry, somewhat inconsistent with the basic
principles of the Williams-McClanahan construct,75 appears not so much to
find inconsistency or disjuncture between two very distinct legal and
political entities, but rather to advance a coherence and conciliation of
these divergent cultures. The courts affirmation of the tribes jurisdiction
and sanction of its adjudicatory system serves to resolve potential future
conflicts around the enforcement of the tribal courts final order on the
childs custody. In this respect, the body of tribal law defining the tribes
authority to adjudicate child custody proceedings becomes a central tenet
of the Williams-McClanahan construct.
Finally, after considering the nature of the tribes interest and
assessing the manner in which it is asserted, the reviewing court considers
the childs relationship to the tribe and the reservation, primarily in terms
of the childs legal domicile. Under the jurisprudential rule developed in
these cases, a child subject to the tribal courts supervision is a ward of the
court, and that childs domicile remains the reservation even when that
child is physically situated outside the reservation. This rule presupposes a
continuing authority of the tribe beyond its borders, and is an important
link between divergent views of culture and legal systems.
75. This subsequent review is paradoxical. Once the tribes requisite authority to hear
and decide the matter is established, the nature or quality of its legal system should not be
subject to further review or evaluation by the court that just concluded that it lacked any
authority over the proceeding. By following the Williams-McClanahan construct of tribal
self-government, the reviewing court intrinsically endorses a stance supportive of tribal
sovereignty, including its judicial authority, in line with the Supreme Court in Williams v.
Lee. See 358 U.S. 217, 222 (1959). Williams recognized, in particular, the progressive
development of Navajo judicial system and its capacity to adjudicate the civil dispute at
issue. Id. Thus, the courts extensive examination of the tribal law and court procedures in
In re Buehl readily compares to the same sort of interference with tribal self-government
that the Williams-McClanahan construct rails against.
76. 420 U.S. 425 (1975).
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different times. She regained custody of all three children two years after dealing with
several different legal proceedings. See id.
83. See DeCoteau, 420 U.S. at 427 n.2, 429. Here, the Supreme Court recognized that
the definition of Indian country, set out in a federal criminal statute, 18 U.S.C. 1151,
generally applies as well to questions of civil jurisdiction. Id. at 427 n.2 (citing
McClanahan v. State Tax Commn, 411 U.S. 164 (1973); Williams v. Lee, 358 U.S. 217
(1959); Worcester v. Georgia, 31 U.S. 515 (1832)); see also Fisher v. Dist. Court, 424 U.S.
382, 388 (1976); infra note 152.
84. Id. at 428-29.
85. Id. at 428, 429 n.3.
86. The DeCoteau opinion consolidated two cases raising similar jurisdictional issues,
one involving DeCoteaus child custody issues and another criminal case involving the
states prosecution of members of the Sisseton-Wahpeton Tribe. The South Dakota Supreme
Court found that non-Indian patented land within the Lake Traverse Reservation was no
longer Indian country since the Tribe had relinquished it to the United States in 1891,
resulting in state jurisdiction over the child custody proceeding. Id. at 429-30. The Eighth
Circuit Court of Appeals reached the opposite conclusion in the criminal case, finding that
the boundaries of the Lake Traverse Reservation remained intact and that the non-Indian
patented lands on which the crimes occurred remained Indian country, thus barring state
criminal jurisdiction over the Indian defendants. Id. at 430.
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land.87
In 1867, the United States made a treaty with the Sisseton and
Wahpeton Bands of the Dakota Sioux Indians in which they ceded certain
rights to their lands.88 In consideration of these cessions, the federal
government established as a permanent reservation a triangular tract of
land with defined boundaries that became known as the Lake Traverse
Reservation89 over which the Tribe exercised powers of self-
government.90 Twenty-two years later, fending off familiar forces from
the encroaching white settlement in the area and desperately needing
money for supplies, the impoverished Tribe agreed to sell all of the
unallotted lands within the Lake Traverse Reservation on the conditions
that each tribal member would receive an allotment of 160 acres and the
Tribe would be adequately compensated for the ceded lands.91 The United
States accepted these terms and agreed to purchase the unallotted lands for
a sum certain.92 Soon after Congress ratified the Tribes agreement in
1891, the Lake Traverse Reservation was allotted, with much of the
unallotted land patented and settled by non-Indians.93 The allotment
process created a crazy quilt pattern of landholdings, with large amounts
of remaining Indian trust land interspersed with the non-Indian patented
land throughout the 1867 boundaries of the Lake Traverse Reservation.94
87. The jurisdictional issues left unaddressed in the DeCoteau decision, and hence the
importance of this history and the ensuing thirty years of ICWA precedents, have been
revived in a case recently decided by the South Dakota Supreme Court. See In re J.D.M.C.,
739 N.W.2d 796 (S.D. 2007) (finding that Sisseton, South Dakota does not meet the
definition of reservation under the ICWA); see infra Part III.B.
88. The bands cede[d] to the United States the right to construct wagon roads, railroads
. . . and such other public improvements . . . across the lands claimed by said bands. Treaty
of Feb. 19, 1867, art. II, 15 Stat. 505, as amended 15 Stat. 509. DeCoteau, 420 U.S. at 451.
The Treaty is appended to the Supreme Court opinion. Id. at 449-455.
89. Treaty of Feb. 19, 1867, art. III; DeCoteau, 420 U.S. at 451-52.
90. DeCoteau, 420 U.S. at 431. Treaty of Feb. 19, 1867, art. X; DeCoteau, 420 U.S. at
454-55.
91. See DeCoteau, 420 U.S. at 431-38. The Tribe did not so much willingly sell and
cede its land, as it acted out of desperation, sacrificing the land to ensure the communitys
survival, since the federal government at that time was under intense pressure to open the
Reservation for farming and railroad development.
92. The Tribe received a sum certain of $2.50 for each acre conveyed under the final
agreement. Id. at 438-39.
93. See id. at 442. Congress ratified the 1889 Agreement on March 3, 1891, and in 1892,
President Harrison declared the ceded lands open for settlement. Id. at 429, 442.
94. Id. at 466 (Douglas, Brennan and Marshall, JJ, dissenting). A more elaborate history
of the 1867 Treaty and 1889 Agreement is provided in the dissenting opinion and in the
Amicus Brief of the United States Solicitor General, submitted at the invitation of the Court.
See Brief for the United States, Robert H. Bork et al. as Amicus Curiae, DeCoteau v.
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District County Court, 420 U.S. 425 (1975) (No. 73-1148), 1974 WL 187466. The Solicitor
General agreed with the decision of the Eighth Circuit Court of Appeals, that the Act of
March 3, 1891, did not disestablish the Lake Traverse Indian Reservation and that the State
of South Dakota is without jurisdiction over the domestic affairs or alleged criminal acts of
Indians arising within the boundaries of the Reservation as established by the Treaty of
February 19, 1867. Id. at *9. The Solicitor appended a copy of a map of the Lake Traverse
Reservation to its brief, prepared by the U.S. Department of the Interior, Bureau of Indian
Affairs, entitled Indian Lands and Related Facilities as of 1971. Id. at *7.
95. See DeCoteau, 420 U.S. at 442-43.
96. Id. at 442-43 n.27.
97. Id. at 443. The Court pointed out, however, that no tribal court or legal code was
established to exercise this jurisdiction. Id. The precise import of this statement to the
Courts consideration of jurisdictional history is unclear, except perhaps as an inference that
sovereignty not asserted is sovereignty forsaken, a perspective that wholly runs afoul of the
later-enunciated principle that [n]onjudicial tribal institutions [are] recognized as
competent law-applying bodies. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 66 (1978). In
fact, the Sisseton-Wahpeton Tribe had established a formal legal system in the 1960s,
beginning with a new constitution adopted in 1966 with federal approval and, supported by
an opinion rendered by the field solicitor in 1972 that the 1891 Act had not extinguished
tribal jurisdiction over the 1867 Reservation, a legal code and court in 1974. The text of the
Tribal Code is available online. Sisseton-Wahpeton Sioux Tribal Code, available at
http://www.narf.org/nill/Codes/sissetonwahpeton%20code/tableofcontents.htm.
This development coincided with several legal disputes, such as the DeCoteau case,
stemming from assertions of state jurisdiction over Indians on the 1867 Reservation. See
DeCoteau, 420 U.S. at 430, 465 (citing a Resolution passed by the Tribal Council in 1972
expressing the Tribes concerns about problems with the removal and placement of tribal
children in non-Indian foster and adoptive homes and approved engagement of legal counsel
to keep the children in the tribal community).
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Rather, the real objectives of the Agreement and the Act simply were to
furnish the Indians the wherewithal to survive and to open the land to
settlement.103 Of grave concern to the dissenting Justices was the
dimensions of tragedy inflicted by [the] decision,104 which they forecast
would tear[] the reservation asunder.105 This threat, admonished the
dissent, was particularly acute when vital tribal interests were at stake, such
as preserving family and community relationships, essential to cultural
survival, and with the problem of domestic relations which goes to the
heart of tribal self-government.106
The relevance of the maps materialized in the dissent as well, as it
struggled to find coherence in the crazy quilt pattern107 of jurisdiction
created by the decision, especially given the facts that very few tribal
members resided on the remaining trust allotments, the Bureau of Indian
Affairs was located in the ceded area, and its service area encompassed
both the trust allotment and ceded areas.108 Finding none, the dissent
forewarned that the majoritys impractical, unwarranted construction may
well be the end of tribal authority.109
Just a year later, in Fisher v. District Court,110 the Supreme Court
held that the Northern Cheyenne Tribe had exclusive jurisdiction over an
analysis: the canon that requires doubtful expressions to be resolved in favor of the Indians,
and its corollary canon that Congress uses clear language of express termination to
disestablish and diminish a reservation and restore it to the public domain when that result
is desired. Id. at 463. He found neither doubtful language in the Agreement, nor a word
to suggest that the boundaries of the reservation were [to be] altered. Id. at 461, 463.
103. Id. at 461.
104. Id. at 464.
105. Id.
106. See id. at 465 n.8. In addition to the canons of construction, the dissent would have
applied the Williams-McClanahan construct of tribal self-government, a status which is not
lightly impaired. Id. at 464 (citing McClanahan v. State Tax Commn, 411 U.S. 164, 168
(1973); Williams v. Lee, 358 U.S. 217, 220 (1959)).
107. DeCoteau, 420 U.S. at 466.
108. Id. at 464. Studying a map of the Lake Traverse Reservation of the Sisseton-
Wahpeton Tribe, which illustrates the scattered pattern of settlement on the Reservation,
Justice Douglas commented, [i]t is indeed difficult, looking at [the] current map, to find
any substantial unit of contiguous Indian land left. The map picture . . . shows a crazy quilt
pattern . . . or checkerboard jurisdiction [which] defeats the right of tribal self-government
guaranteed by Art. X of the 1867 Treaty, 15 Stat. 510, and never abrogated. Id. at 466
(internal citations omitted).
109. Id. at 467. The dissenting Justices also warned of the dire practical consequences of
the majoritys decision, such that [j]urisdiction dependent on the tract book promises to
be uncertain and hectic, and that in the competing claims of jurisdiction over conduct
certain not to be stationary, the beneficiary likely is the State. Id.
110. 424 U.S. 382 (1976) (per curiam).
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adoption proceeding in which all parties were members of the tribe and
residents of the Northern Cheyenne Reservation.111 Like DeCoteau, the
Fisher case challenged state court jurisdiction over a child custody
proceeding arising on the reservation, but not the existence of the
reservation itself. The case began as a dependency and neglect proceeding
in the Northern Cheyenne Tribal Court, which deemed the child, Ivan
Firecrow, a ward of the court and placed him in temporary foster care.112
The foster parents initiated adoption proceedings in state court shortly
before the tribal court restored custody of the child to his mother.113
Although the mothers motion to dismiss the adoption proceeding for
lack of subject matter jurisdiction was granted by the Montana District
Court,114 the Montana Supreme Court set it aside finding that the state court
had jurisdiction over Indian adoptions.115 The United States Supreme Court
reversed, stating that [s]ince the adoption proceeding is appropriately
characterized as litigation arising on the Indian reservation, the jurisdiction
of the Tribal Court is exclusive.116 Drawing on the principles of Williams
v. Lee, the Court recognized the tribal court as the proper and exclusive
forum for the Tribes exercise of its powers of self-government over
reservation affairs,117 and concluded that state jurisdiction would infringe
on the right of reservation Indians to make their own laws and be ruled
by them.118 Finally, the Court rejected the argument that denying tribal
member plaintiffs access to the state court would constitute an equal
protection violation, explaining that the tribal courts authority did not
derive from the race of the parties, but rather from the Tribes own
sovereign status.119
The DeCoteau and Fisher decisions illustrate two very different
111. Although there were significant off-reservation events, such as the childs birth and
the parents marriage and divorce, the Court found these to be of marginal relevance,
focusing solely on the tribal court proceedings. Id. at 389 n.14.
112. See id. at 383.
113. Id.
114. Id. at 384. In an extraordinary procedural move, the Montana District Court certified
a question of law to the Northern Cheyenne Tribal Appellate Court on the issue of whether
tribal law conferred jurisdiction on the state court. Id. The tribal appellate court determined
that tribal law did not confer state court jurisdiction over adoptions of tribal members. Id. at
384 nn.5-6 & 385 n.11.
115. Id. at 385.
116. Fisher, 424 U.S. at 389.
117. See id. at 387.
118. Id. at 386-88 (quoting Williams v. Lee, 358 U.S. 217, 220 (1959)).
119. Id. at 390. The Court expressly held that the Tribes powers of self-governance were
unaffected by any other law (such as treaties, Montanas enabling Act, or tribal laws), and
no federal statute had sanctioned any interference with tribal self-government. Id. at 388.
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120. In addition to the cases discussed above, see also In re Colwash, 356 P.2d 994
(Wash. 1960) and State v. Superior Court, 356 P.2d 985 (Wash. 1960), two cases decided
the same day in which the Washington Supreme Court held that state courts had no
jurisdiction to determine the dependency and custody of Indian children who resided on
Indian reservations. See also In re Whiteshield, 124 N.W.2d 694 (N.D. 1963) (exclusive
tribal jurisdiction where all the parties to the adoption proceeding were tribal members and
reservation residents); In re Cantrell, 495 P.2d 179 (Mont. 1972) (state jurisdiction over
Indian child abandoned off reservation despite reservation residency when proceeding
initiated); United States ex rel. Cobell v. Cobell, 503 F.2d 790 (9th Cir. 1974) (state court
jurisdiction over child custody dispute of divorcing parents where all parties domiciled off
the reservation and tribe disclaimed jurisdiction over proceedings); In re Greybull, 543 P.2d
1079 (Or. Ct. App. 1975) (state jurisdiction where parents and children had not lived on an
Indian reservation); In re Duryea, 563 P.2d 885 (Ariz. 1977) (state jurisdiction over
adoption proceedings where children were not domiciled on the reservation).
121. See Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148-49 (1973).
122. Williams, 358 U.S. at 221-22; United States v. Wheeler, 435 U.S. 313, 326 (1978).
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123. In a statement introducing H.R. 12533, the House version of the Indian Child
Welfare Act legislation, Rep. Morris K. Udall warned that Indian tribes and Indian people
are being drained of their children and, as a result, their future as a tribe and a people is
being placed in jeopardy. 124 CONG. REC. H38102 (daily ed. Oct. 14, 1978) (statement of
Rep. Udall).
124. 1974 Senate Hearings, supra note 1, at 3 (statement of William Byler, Executive
Director of the Association on American Indian Affairs). Mr. Bylers presentation, which
began, [w]e have been hoping to have such a hearing [on this issue] for 6 or 7 years,
provided concrete data from extensive studies about the causes of the Indian child welfare
crisis and its impacts on Indian family and community life. Id. at 3-4. Byler reported
findings from surveys of states with large Indian populations that showed about 25 percent
of all American Indian children are taken away from their families. Id. at 3. Several states
had shockingly high removal rates. For example, in Minnesota, Indian children were placed
in foster or adoptive homes five times more frequently than non-Indian children. In South
Dakota, Indian children represented 40 percent of all adoptions in the state, although they
have comprised only 7 percent of the total population since 1968. At that time, the
occurrence of Indian children living in foster homes in South Dakota was nearly 1600
percent greater than the rate of non-Indians. Id. The Indian adoption rate in Washington
was 1900 percent greater and its foster care rate was 1000 percent greater than the rates for
non-Indian children. In Wisconsin, Indian children faced a 1600 percent greater risk of
being separated from their families than non-Indian children. Just as Indian children are
exposed to these great hazards, their parents are too. Id. Byler further reported that federal
boarding schools account for enormous numbers of Indian children who are not living in
their natural homes . . . [representing] more than 17 percent of the Indian school age
population . . . and 60 percent of the children enrolled in BIA schools. Id. at 4, 10. Many
Indian children are sent to boarding schools, not for educational reasons. They are sent
because their behavior or their family circumstance is judged in a nonadjudictory process to
warrant their placement in a BIA institution. Id. For further discussion about boarding
schools, see Curcio, supra note 28.
125. House Report, supra note 1, at 7541 (Contributing to this problem has been the
failure of State officials, agencies, and procedures to take into account the special problems
and circumstances of Indian families and the legitimate interest of the Indian tribe in
preserving and protecting the Indian family as the wellspring of its own future.); see also
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25 U.S.C. 1901(5) (2000) ([J]udicial bodies, have often failed to recognize the essential
tribal relations of Indian people and the cultural and social standards prevailing in Indian
communities and families.).
126. 124 CONG. REC. H38102 (daily ed. Oct. 14, 1978) (statement of Rep. Lagomarsino,
co-sponsor of the ICWA).
127. 1974 Senate Hearings, supra note 1, at 62.
[T]he greater the degree of powerlessness of a family, the greater is the
likelihood of the states benevolent intrusion, especially when coupled
with few standards and no systematic review of judgments.
Such intrusion by state and federal governmental agents has long been
prevalent among families of American Indians, particularly those living
on reservations.
Id. (statement of Drs. Mindell and Gurwitt); see also House Report, supra note 1, at 7534
(Cultural disorientation, a persons sense of powerlessness, his loss of self-esteemthese
may be the most potent forces at work. They arise, in large measure, from our national
attitudes as reflected in long-established Federal policy and from arbitrary acts of
Government.).
128. See House Report, supra note 1, at 7534 ([B]ecause . . . there is no end to Indian
poverty in sight, agencies of government often fail to recognize immediate, practical means
to reduce the incidence of neglect or separation.).
129. See 124 CONG. REC. H38102 (daily ed. Oct. 14, 1978) (statement of Rep. Udall)
([I]n all too many cases, Indian parents have their children forcibly taken from them not
because they are unfit parents or because they cannot adequately provide for those children
as measured by the norms prevailing in the Indian community, but because they are
Indians.); see also Senate Report, supra note 1, at 44 (describing the common cultural
barriers and biases frequently associated with state social workers contact with Indian
families, that social workers with no background or experience with the destitute and
impoverished conditions extant on many reservations and in the urban areas to which
Indians were relocated, and little understanding of Indian lifestyle or culture, make
judgments concerning the adequacy of an Indian childs upbringing.); House Report, supra
note 1, at 7532-33 ([T]he conflict between Indian and non-Indian social systems operates
to defeat due process.).
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130. Senate Report, supra note 1, at 12; see also AIPRC REPORT, supra note 28, at 39
(Two basic jurisdictional questions exist: who decides whether an Indian child needs to be
removed from home; and where and how that child is to be raised. Until very recently, such
decisions have been made by non-Indians, without tribal input. Today, the tribes are
beginning to reassert their historical role in the care and protections of Indian children.);
1977 Senate Hearings, supra note 1, at 265-66 (comments offered by the Cheyenne River
Sioux Tribe) (supporting the bills focus on tribal courts as the crucial place which the
issue of child custody [proceedings] is to be decided in the framework of tribal self-
determination); 1978 House Hearings, supra note 1, at 166-71 (statement of Robert W.
Barker, Special Counsel to the Church of Jesus Christ of Latter-Day Saints) (sharing his
skepticism about the ability of tribal courts to handle the excessive burdens of child welfare
proceedings, yet conceding that tribes had a legally compelling interest in protecting Indian
children).
131. See AIPRC REPORT, supra note 28, at 46-50.
132. The Indian Child Welfare Act of 1977, S. 1214, introduced on April 1, 1977 by
Senator James Abourezk (S.D.), Chairman of the Committee on Interior and Insular Affairs,
was co-sponsored by Senators Hubert Humphrey (Minn.) and George McGovern (S.D.), and
referred to the Select Committee on Indian Affairs. Senator Abourezk sponsored a similar
bill, S. 3777, in the 94th Congress, which was referred to the Senate Committee on Interior
and Insular Affairs and later referred to the Subcommittee on Indian Affairs where no action
was taken. The Select Committee on Indian Affairs held hearings on S. 1214, adopted an
amendment of the bill by way of a substitution, and reported the amended bill to the Senate
on November 3, 1977. The bill passed the Senate on November 3, 1977. The Senate issued a
Report on S. 1214 on November 3, 1977, which provided a detailed comparison of the
significant changes from the original version of S. 1214 and the substitute amendment. See
Senate Report, supra note 1, at 13-15. In the House, S. 1214 was referred to Rep. Udall of
Arizona, Chairman of the House Committee on Interior and Insular Affairs. Hearings were
held on February 9 and March 8, 1978, before the Subcommittee on Indian Affairs and
Public Lands. On April 18, 1978, the Subcommittee marked up S. 1214 and adopted an
amendment in the nature of a substitute. Rep. Udall introduced this substitute bill, H.R.
12533. The full Committee considered the bill on June 21, 1978, proceeded to the markup of
H.R. 12533 in lieu of S. 1214. The Committee adopted an amendment in the nature of a
substitute of H.R. 12533, which, with further amendments, was reported from the
Committee favorably. On October 14, 1978, the House considered and passed H. 12533, and
then passed S. 1214 in lieu, after approving several amendments to the House bill. The
Senate concurred in the House amendments. The Indian Child Welfare Act was passed on
November 8, 1978 as Public Law 95-603, 92 Stat. 3069, codified at 25 U.S.C. 1901-
1952.
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133. During the 94th Congress, Task Force IV of the American Indian Policy Review
Commission, established by the Act of January 2, 1975 (88 Stat. 1910), examined the issues
of Indian child welfare raised in the early testimony. The Task Force conducted an
independent investigation, held its own hearings, and submitted its findings to the AIPRC.
The Final Report of the AIPRC, submitted to Congress on May 17, 1977, incorporated the
Final Report of the Task Force. The Final Report of the AIPRC is reprinted in the 1977
Senate Report. See AIPRC REPORT, supra note 28, at 37-49.
134. AIPRC REPORT, supra note 28, at 50 (If tribal sovereignty is to have any meaning
at all at this juncture of history, it must necessarily include the right within its own
boundaries and membership to provide for its young, a sine qua non to the preservation of
its identity. (citing Wisconsin Potowatomies of Hannahville Indian Community v.
Houston, 393 F. Supp. 719, 730 (W.D. Mich. 1973))).
135. Id. at 50-51 (citing DeCoteau v. Dist. County Court, 420 U.S. 425 (1975)).
136. AIPRC REPORT, supra note 28, at 51. The Report also noted that mobility also
frustrated the enforcement of custody determinations already made in tribal courts through
relitigation of the childs custody in state court since state courts are not constitutionally
required to give tribal orders and judgments full faith and credit. Just as mobility will
frequently remove Indian children from reservation systems and bring them into initial
contact with non-Indian systems, so mobility will also remove a child subject to a tribal
courts jurisdiction into another geographic jurisdiction. Id. at 52.
137. Id. at 51.
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138. Id.
139. Id.
140. Senate Report, supra note 1, at 10. Reference to declarative . . . law presumably is
to the decisions cited in the AIPRC Report. See supra notes 133-138 and accompanying
text; supra Part I.
141. Senate Report, supra note 1, at 10. Numerous tribes had become subject to state
jurisdiction under Public Law 280, a federal law enacted in 1953 during the termination era
of federal Indian policy that conferred jurisdiction to certain states over civil causes of
action and criminal activities occurring on Indian reservations within those states. Act of
Aug. 15, 1953, Pub. L. 83-280, 67 Stat. 588 (codified as amended at 28 U.S.C. 1360, 18
U.S.C. 1162 (2000)). The original Public Law 280 states were Alaska, California,
Minnesota, except the Red Lake Reservation, Nebraska, Wisconsin, and Oregon, except the
Warm Springs Reservation. Other states later assumed elements of civil and criminal
jurisdiction over Indian reservations in their states. See Washington v. Confederated Bands
and Tribes of the Yakima Indian Nation, 439 U.S. 463, 471 n.9 (1979) (finding that state
permitted to assume partial jurisdiction over certain activities on Indian reservations, such as
assumption of domestic relations, adoption proceedings, and dependent children). Public
Law 280 was amended in 1978 through the Indian Civil Rights Act to require the consent of
the affected Indian tribe to state jurisdiction. 25 U.S.C. 1321-1326 (2000). Since then,
however, no tribe has consented to such state jurisdiction, and several states have retroceded
jurisdiction to tribes pursuant to 25 U.S.C. 1323.
As enacted, ICWA vests exclusive jurisdiction with tribes over Indian child custody
proceedings when the child resides or is domiciled on the reservation, except where such
jurisdiction is otherwise vested in the state by existing Federal law. 25 U.S.C. 1911(a)
(2000). This exception refers to Public Law 280. The application of Public Law 280 in
ICWA proceedings has engendered much litigation about the authority retained by tribes
over reservation-based child welfare proceedings. The prevailing view is that tribes maintain
primary, but concurrent, jurisdiction with the state over reservation-based Indian child
custody proceedings. See, e.g., Native Village of Venetie I.R.A. Council v. Alaska, 944 F.2d
548, 561-62 (9th Cir. 1991) (stating that Public Law 280 states have only concurrent
jurisdiction with the tribes over child custody proceedings involving Indian children); see
also Doe v. Mann, 415 F.3d 1038, 1061 (9th Cir. 2005), cert. denied, 547 U.S. 1111 (2006)
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(stating that Public Law 280 permits California to exercise jurisdiction, concurrent with
tribes, over child dependency proceedings arising on Indian reservations through ICWA).
Tribes may reassume jurisdiction over child custody proceedings from the state by
submitting a petition to the Secretary of the Interior. 25 U.S.C. 1918(a) (2000). For further
discussion about Public Law 280, see supra note 67.
142. The jurisdictional provisions in S. 1214, as originally introduced, were set out in
Section 102. After the substitute amendment, see supra note 132, the jurisdictional section
became 101, with substantially the same language. While some comments in the
congressional testimony refer to Section 102 of the original version of S. 1214, the 1977
House Hearings, 1977 Senate Report, House Report and Congressional Record refer to
Section 101.
143. Senate Report, supra note 1, at 4. This was a straightforward codification of the
Fisher decision. Id. at 17 ([E]xclusive jurisdiction of the tribe is well founded in the law.)
(citing Fisher v. Dist. Court, 424 U.S. 382 (1976)).
144. Id. at 4.
145. Id.
146. Id.
147. Id. at 4-5.
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148. Id. at 6.
149. Senate Report, supra note 1, at 17 (also referencing Section 102(b)).
150. 25 U.S.C. 1903(12) (2000).
151. 25 U.S.C. 1911(d) (2000).
152. The definition of Indian country is codified in the federal criminal statutes at 18
U.S.C. 1151, and is equally applicable in civil cases. Fisher v. Dist. Court, 424 U.S. 382,
388 (1976).
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action, she contended, could only be done after Congress carefully studied
the impact of such a jurisdictional shift on the affected tribe and the local
community.161 Representative Udall disagreed with Assistant Attorney
General Walds characterization of the effect of the definition. He
attempted to assuage her concerns by explaining that tribal jurisdiction
would be limited to tribal members and Indian children, and further that
[n]on-Indians will no more be affected by this provision than are non-
Indians who currently live within a reservation which has not been
disestablished.162
Representative Robert Lagomarsino of California shared the
Department of Justices unease with the definition reservation. He
23, 1978), reprinted in House Report, supra note 1, at 756164. This was her second letter
to the Chairman. In her first letter, the Assistant Attorney General argued that non-enrolled
Indian children do not have a political relationship with a tribe, such that including them in
the definition of an Indian child in the proposed legislation, and thus within the ambit of
exclusive tribal jurisdiction, constituted discrimination in violation of the equal protection
clause. Letter from Patricia M. Wald, Assistant Attorney General to Honorable Morris K.
Udall, Chairman, Committee on Interior and Insular Affairs, House of Representatives (Feb.
9, 1978), reprinted in 1978 House Hearing, supra note 1, at 217-23, and House Report,
supra note 1, at 7558-61. In her second letter, Assistant Attorney Wald indicated that her
constitutional concerns had been resolved in the subsequent draft through an additional
reference to the Indian childs biological relationship to an enrolled tribal member. See 25
U.S.C. 1903(4) (2000). See also testimony of Larry L. Simms, Attorney/Advisor, Office
of Legal Counsel, U.S. Dept. of Justice, 1978 House Hearing, supra note 1, at 120-24.
In a fascinating exchange on this issue between Mr. Simms and Franklin Ducheneaux,
Special Counsel for the Senate Select Committee on Indian Affairs, Mr. Ducheneaux
proffered the argument that since the Fisher, Wakefield and Williams decisions recognized
child-rearing as an essential tribal relation, which both the tribe and the United States as
trustee have an interest in protecting, id. at 122, Indian children who are eligible to be
members of an Indian tribe form the potential membership of that tribe [such that] the tribe
has a legitimate interest in protecting and preserving their welfare. Id. Conceding the tribal
interest, Mr. Simms nonetheless questioned whether it was sufficiently compelling to
overcome a constitutional challenge based on an improper racial classification. Id. (citing
Fisher, 424 U.S. 382, 391 (1976)); see Morton v. Mancari, 417 U.S. 535, 551-555 (1974).
The House had the final word in this debate:
Obviously, Congress has power to act for [the protection of minor
Indian children]. The constitutional and plenary power of Congress over
Indians and Indian tribes and affairs cannot be made to hinge upon the
cranking into operation of a mechanical process . . . particularly with
respect to Indian children who, because of their minority, cannot make a
reasoned decision about their tribal and Indian identity.
House Report, supra note 1, at 7539.
161. House Report, supra note 1, at 7564.
162. Letter from Rep. Udall to Hon. Patricia M. Wald, Assistant Attorney General (Oct.
2, 1978), reprinted in 124 CONG. REC. 38103 (Oct. 14, 1978).
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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 childs 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 childs tribe: Provided, That such transfer
shall be subject to declination by the tribal court of such tribe.
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 childs 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
these courts. Again this concept finds its judicial basis in decisions such as
Williams v. Lee, where the Supreme Court acknowledged the authority and
role of the Navajo Court system in fulfilling the tribes responsibilities in
matters of tribal self-governance,171 and Wisconsin Potowatomies, where
the federal district court recognized the tribes customs and traditions, as
well as its legal right, to secure the custody of the three orphaned children
of the Hannahville Indian Community.172 Congress appreciably understood
the diverse array of tribal governmental structures, as well as the many
obstacles to the administration of tribal judicial systems,173 such as the
proclivity of state courts to ignore decisions and decrees of tribal courts.174
As enacted, ICWA broadly defines tribal court as 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.175 The final
legislation also established that decisions of these judicial bodies are
entitled to be recognized and enforced in state forums.176
The third meta-jurisdictional concept, a fusion of the first two,
realizes the transcendency of tribal authority beyond reservation
boundaries. Here, the unique character of tribal interests as parens patriae
to all its minor tribal members,177 unlike any other government-citizenship
relationship in the United States, coalesces with the essentiality of tribal
governance in child welfare matters, to compose an uber-tribal interest that
transcends territorially-defined jurisdictional limits.178 Beyond these
fundamental legal rights are the very real consequences of poor reservation
179. See Senate Report, supra note 1, at 51 (Many Indian families move back and forth
from a reservation dwelling to border communities or even to distant communities,
depending on employment and educational opportunities.); AIPRC REPORT, supra note 28,
at 51; Wisconsin Potowatomies of Hannahville Indian Community v. Houston, 393 F. Supp.
719, 731 (W.D. Mich. 1973). Professor Angela R. Riley uses the phrase indigenization of
modernity to describe the social shift in modern tribal communities where many Indians
move away from their reservations for work, education or military service, yet retain
varying degrees of connection to their tribal communities. Angela R. Riley, Good (Native)
Governance, 107 COLUM. L. REV. 1049, 1069-71 (2007) (internal quotation marks
and citations omitted).
180. 25 U.S.C. 1911(b); see also Mississippi Band of Choctaw Indians v. Holyfield,
490 U.S. 30, 36 (1989).
181. 25 U.S.C. 1911(a).
182. House Report, supra note 1, at 7543 (emphasis added); see also AIPRC REPORT,
supra note 28, at 45, 50-52 (discussing myriad of child welfare problems faced by tribes).
183. See generally cases discussed in supra Part I.
184. See 1977 Senate Hearings, supra note 1, at 69, 126, 145; 1978 House Hearings,
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197. In re D.L.L., 291 N.W.2d at 280 (citing Barber v. Barber, 62 U.S. 582 (1859)).
198. Id. at 281 (citing McClanahan v. Arizona Tax Commn, 411 U.S. 164 (1973);
Williams v. Lee, 358 U.S. 217 (1959); Fisher v. Dist. Court, 424 U.S. 382 (1885); Santa
Clara Pueblo v. Martinez, 436 U.S. 49 (1978); United States v. Quiver, 241 U.S. 602
(1916); Roff v. Burney, 168 U.S. 218 (1897)).
199. Id. (No evidence has been introduced in support of an allegation of arbitrariness of
the 1978 Act.).
200. Id. (reviewing Article XXII of the South Dakota Constitution which reserved
jurisdiction to the state whenever an Indian is off the reservation.).
201. Id.
202. Id. (citing Williams v. Lee, 358 U.S. 217 (1959)). The court further opined that
Indian relations are of an anomalous and complex character, and tribal courts are better
able than other forums to evaluate question of Indian traditions. Id. (citing Santa Clara
Pueblo v. Martinez, 436 U.S. 49 (1978); United States v. Quiver, 241 U.S. 602 (1916)).
203. In re D.L.L., 291 N.W.2d at 280.
204. Id. (citing Roff v. Burney, 168 U.S. 218 (1897)).
205. Id. (citing Fisher v. Dist. Court, 424 U.S. 382 (1976)).
The tribal court, acknowledged the South Dakota Supreme Court, is a suitable forum to
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evaluate questions of Indian traditions. Id. (citing Santa Clara Pueblo v. Martinez, 436 U.S.
49 (1978)). This is true despite tribal members presence outside territorial boundaries of
reservation because tribal government may regulate the absent tribal members affairs. Id.
(citing Roff v. Burney, 168 U.S. 218 (1897)). Moreover, state action affecting tribal
interests in domestic relations must be clearly authorized in federal law. Id. (citing United
States v. Quiver, 241 U.S. 602 (1916)).
206. Id.
207. Id. (citing Williams v. Lee, 358 U.S. 217 (1959)).
208. Id. at 282 (emphasis added).
209. In re D.L.L., 291 N.W.2d at 280 (citation omitted).
210. Id. (citation omitted).
211. Id.
212. Id. at 282. The South Dakota Supreme Court specifically found that
this arrangement did not constitute abandonment or desertion. Id.
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213. Id. At least three Justices of the United States Supreme Court cited In re D.L.L. with
approval. See Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 62 (1988)
(Stevens, J., dissenting).
214. 718 P.2d 150 (Alaska 1986).
215. Id. at 151. The Village Council is the governing body of the Village of Kaltag, a
recognized Indian tribe under ICWA. See 25 U.S.C. 1903(8) (2000). Pursuant to the
Village Constitution, the Village Council is authorized to act judicially in domestic relations
matters, and thus falls within ICWAs broad definition of tribal court. See id. 1903(12).
This authority, as noted by the Alaska Supreme Court, is consistent with United States
Supreme Court precedents and congressional affirmation of the broad scope of tribal
authority in the area of domestic relations among tribal members. In re J.M., 718 P.2d at
153, n.2 (citing Fisher v. Dist. Court, 424 U.S. 382 (1976); House Report, supra note 1, at
7558).
216. In re J.M., 718 P.2d at 151.
217. Id. at 151-52; 25 U.S.C. 1911(a) (2000).
218. In re J.M., at 152 (alteration in original) (internal quotations omitted). After the
adjudicatory hearing on J.M.s mothers parental rights, the trial court issued an order
finding that it had jurisdiction over the parties and subject matter because the Village of
Kaltag released whatever jurisdiction it might have claimed in order to obtain state funded
foster care for [J.M.]. Id. at 152 (alteration in original).
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assistance for his foster care.219 The court rejected the States implicit-
waiver-through-state-assistance argument, finding instead that the Chief
had acted independently of the Council and that his actions constituted
neither official action of the Village nor effectuated a waiver.220 The court
also refused to find a waiver of jurisdiction by implication, stating that such
would be inconsistent with the ICWA objective of encouraging tribal
control over custody decisions affecting Indian children221 and the
principles laid down in Wisconsin Potowatomies and Wakefield v. Little
Light.222 Lacking a valid basis to maintain the case in state court, the
Alaska Supreme Court dismissed the proceedings.223
Clashes between state and tribal courts over control of Indian child
custody proceedings under ICWA often were grounded in opposing views
of federalism and states rights. State courts resented federal interference
with their traditional authority in the area of family relations and tribal
courts objected to state court tactics that thwarted the fulfillment of
ICWAs statutorily-prescribed deference to tribal courts.224
Notwithstanding the South Dakota Supreme Courts affirmation of
Congresss power to enact ICWA under the Indian Commerce Clause of
the Federal Constitution,225 federalism concerns spurred some state courts
to judicially limit the applicability of ICWA to child custody proceedings
involving Indian children who are removed from an existing Indian
family unit resulting in the breakup of the Indian family.226 These courts
also limit ICWA to circumstances where the Indian childs parents have
maintained a significant social, cultural or political relationship with their
tribe.227
One courts antipathy for ICWAs overarching federalism ideals and
extra-territorial tribal rights applied the existing Indian family doctrine to
nullify a tribal court ward determination and approved the adoption of the
Indian child with a non-Indian guardian. In In re T.R.M.,228 the Indiana
Supreme Court found ICWA inapplicable to an adoption proceeding
involving a member of the Oglala Sioux Tribe who had relinquished
custody of her son immediately upon giving birth off the Pine Ridge
Reservation in South Dakota.229 The mother attempted to revoke her
as judicial and social services-type resources, does not equate to a waiver of statutorily
mandated jurisdiction. No tribal-state agreement was in place in the J.M. case. Rather than
skirting the issue, the court should have readily concluded that ICWAs exclusive
jurisdictional mandate is not waivable. If it can be waived, then it is not exclusive.
224. Well aware of these challenges, Congress posited its authority to legislate in the area
of Indian child welfare on its plenary power. See supra note 160; House Report, supra note
1, at 7536-37.
225. In re D.L.L., 291 N.W.2d 278, 281 (S.D. 1980) (Congress has seen fit to exercise
its legislative will over Indian tribes and their members based upon Art. I, 8, of the United
States Constitution . . . [which] has been used many times as the basis of federal authority
over Indian matters. (citing McClanahan v. State Tax Commn, 411 U.S. 164 (1973))).
226. In re Baby Boy L., 643 P.2d 168, 175 (Kan. 1982).
227. In re Bridget R., 49 Cal. Rptr. 2d 507, 516 (Cal. Ct. App. 1996). State courts around
the country are split on the existing Indian family doctrine and its extra-statutory criteria.
Most state courts to have considered the issue have chosen to reject the exception and have
applied the plain language of ICWA. See, e.g., In re Baade, 462 N.W.2d 485, 489-90 (S.D.
1990); In re Riffle, 922 P.2d 510, 513-14 (Mont. 1996); In re Baby Boy C, 805 N.Y.S.2d
313, 323 (N.Y. App. Div. 2005); In re N.B., No. 06-CA1325, __ P.3d __, 2007 WL
2493906 (Colo. App. 2007).
228. 525 N.E.2d 298 (Ind. 1988).
229. T.R.M. was born on June 14, 1981 in Hot Springs, South Dakota, outside the Pine
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consent to the adoption seven months later and sought to regain custody of
her son with the assistance of the Oglala Sioux Tribal Court by filing
habeas corpus petitions in the Indiana state court.230 Apparently unaware of
the tribal court order, T.R.M.s adoptive parents had filed their adoption
petition in the Indiana state court a day after the tribal court entered its
order.231 Although the Indiana Court of Appeals reversed the adoption
decree, finding that the tribal court had exclusive jurisdiction pursuant to its
wardship order, the Indiana Supreme Court reinstated the trial courts
order. But in doing so, the court centered its decision on the inapplicability
of ICWA to the proceedings, and concomitantly, under its reasoning, the
invalidity of the tribal court order.232
The courts opinion began on a cautionary note: The power of state
courts to conduct adoption proceedings involving children of Indian
ancestry may be subject to significant limitations under the Indian Child
Welfare Act.233 It held, however, that ICWA afforded T.R.M. no federal
protection in the Indiana state courts since he was not removed from an
existing Indian family,234stating, ICWA should not be applied to the
Ridge Reservation. On June 21, 1981, his mother signed a consent to adoption and
relinquished custody of him to his adoptive parents who immediately returned to Indiana.
Id. at 301-02.
230. Id. at 302. In April 1982, the Oglala Sioux Tribe and T.R.M.s mother filed separate
habeas petitions in Indiana state court claiming jurisdiction in the Oglala Sioux Tribal Court.
The state court heard evidence on the petitions on September 24, and then dismissed the
Tribe's petition on October 21 for failure to appear and present evidence at the hearing. The
state court also denied T.R.M.s mothers petition and granted temporary custody of the
child to the adoptive parents.
231. Id. It is unclear how much information the state and the tribal courts had about one
anothers proceedings concerning T.R.M.s custody. On September 21, three days before the
Indiana courts hearing on the Tribes habeas petition, the Oglala Sioux Tribal Court issued
an order deeming T.R.M. to be a ward of the court. Id. However, the following day, the
adoptive parents filed adoption papers in Indiana state court. Id. The Tribe responded
shortly thereafter with a motion to transfer the matter to the tribal court on the basis that the
child was a ward of the tribal court. Id. A year later, the Indiana trial court granted the
adoption after a hearing on the jurisdictional issues. Id.
232. Id.
233. Id. at 301 (citing 25 U.S.C. 1901-1963 (1982)).
234. In re T.R.M., 525 N.E.2d at 303. The court then delved into a lengthy
discussion about the possible Tenth Amendment issues raised in the case, and
declined to address them, stating:
[W]e are acutely aware that the Supreme Court has not yet addressed the
constitutionality of the ICWA under the Tenth Amendment or general
principles of federalism. . . . [W]e are not convinced that Congress
power to control the incidents of [jurisdiction] involving nonreservation
Indian children and parents pursuant to the Indian commerce clause
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Indian parents in Montana. Prior to giving birth, she visited the White Mountain Apache
Reservation in Arizona to become acquainted with her biological family. Id. at 1219.
243. Id. at 1219-20.
244. Id. at 1220.
245. Id.
246. Id.
247. Id.
248. In re M.R.D.B., 787 P.2d at 1220.
249. Id.
250. Id. at 1221 (finding jurisdiction pursuant to 25 U.S.C. 1911(b)). In the interim, the
tribal court issued orders affirming the childs continued ward status and placing her
physical custody with Tribal Social Services. Id.
251. 490 U.S. 30 (1989).
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required the tribal court to retain jurisdiction over a dependent child until
the child became an adult or the court otherwise terminated its supervision.
This statutory mandate established a solid basis for the tribal courts initial
and continuing authority over the child and the childs wardship status.259
The M.R.D.B. decision stands in stark contrast to the T.R.M. decision,
although both cases addressed a similar set of facts and issues. Both
mothers voluntarily relinquished their children at birth and then attempted
to regain their custody with assistance from their tribal courts. The tribes
interests in the children were defended in both the state and tribal court
proceedings, with tribal law supporting their assertion of jurisdiction. In
both cases, the mothers actions were closely scrutinized, with the Montana
Supreme Court seemingly indifferent to the actions of M.R.D.B.s mother
thirteen months after her childs birth; while the Indiana Supreme Court
found the attempted revocation of T.R.M.s mother seven months after her
childs birth negligently dilatory. The Montana Supreme Court also
concluded that the wardship order of the White Mountain Apache Tribal
Court, issued shortly after the initiation of the state court proceeding,
vested exclusive jurisdiction in the tribal court; while to the Indiana
Supreme Court, the Oglala Tribal Courts order issued one day before the
state court action was commenced, failed to vest jurisdiction in the tribal
court. In M.R.D.B., the mother spent significant time with her child; while
in T.R.M., the mother had no opportunity to establish any contact with her
child. While both courts noted their reliance on the congressional purposes
and intent of ICWA, they came to very different conclusions as to the
application of those purposes. The Montana Supreme Court resolved the
jurisdictional issue in light of ICWAs purpose of preserving the childs
relationship with the tribe and Indian family; whereas the Indiana Supreme
Court concluded ICWA was not meant to apply to Indian children who had
had no contact with an Indian family and never resided on the reservation.
What then are the salient differences between the two cases? An
important factor is that the Montana Supreme Court had the benefit of the
Supreme Courts decision in Mississippi Band of Choctaw Indians, which
also involved Indian parents who voluntarily relinquished custody of their
children off the reservation, followed by the tribes claim of jurisdiction in
the state court proceedings. Writing for the Courts majority, Justice
259. In re M.R.D.B., 787 P.2d at 1223-24. M.R.D.B.s adoptive parents argued that after
six years and several unstable placements, the Montana Supreme Courts decision would be
traumatic to the child. The Court stated that despite the genuine family bond, the best
interest of [the child] is not a question for this Court to decide. The sole issue under
consideration by this Court is whether the Tribal Court has exclusive jurisdiction under 25
U.S.C. 1911(a) of the ICWA. Id. at 1224. For additional discussion about the courts
responsibility for the best interest of the child, see infra notes 271 and 285.
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260. Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 48 (1998)
([D]omicile is established by physical presence in a place in connection with a certain state
of mind concerning ones intent to remain there). Domicile carries a different meaning
than residence, another jurisdictional premise under ICWAs exclusive jurisdiction
provision. See 25 U.S.C. 1911(a) (2000). In contrast, residence signifies living in a
particular locality. In re G.R.F., 569 N.W.2d 29, 33 n.4 (S.D. 1997) (quoting BLACKS LAW
DICTIONARY 485 (6th ed. 1990)).
261. Mississippi Band of Choctaw Indians, 490 U.S. at 43-45, 47. The Court explained
that since ICWA does not provide a definition of domicile, its meaning must be construed
according to congressional intent, its purpose, and the legislative history of the Act. The
Court concluded that Congress intended a uniform federal definition of the term, eschewing
any application of diverse state laws that otherwise would impair such uniform application
of federal law. Id. at 44-47. Further, the purpose of ICWA and its legislative history
revealed Congresss serious concern about the states divisive role in the child welfare crisis
and their debilitating bias against respect for essential relations among Indian people. Id. at
45. The Court concluded, Under these circumstances it is most improbable that Congress
would have intended to leave the scope of the statutes key jurisdictional provision subject
to definition by state courts as a matter of state law. Id. at 45.
262. Id. at 49. The Court cites to the congressional policy statement that there is no
resource that is more vital to the continued existence and integrity of Indian tribes than their
children[.] Id. (citing 25 U.S.C. 1901(3)). The Court recognized that the overarching
purpose of the statute is to promote the stability and security of Indian tribes[.] Id. The
Court concluded that the tribe had exclusive jurisdiction to decide the childrens placement,
noting, however, the weightiness of the bonds established between the adoptive parents and
the children. Id. at 53-54. [W]e must defer to the experience, wisdom, and compassion of
the [Choctaw] tribal courts to fashion an appropriate remedy. Id. at 54 and n.28 (citing In
re Halloway, 732 P.2d 962, 972 (Utah 1986)).
263. 490 U.S. at 58-59 (Stevens, J., dissenting); see also supra notes 228-241 and
accompanying text (discussing the decision of the Indiana Supreme Court in the case In re
T.R.M.).
264. Mississippi Band of Choctaw Indians, 490 U.S. at 58-59.
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limited jurisdiction over Indian children who never had any contact with
the reservation. The dissent reasoned that the Acts jurisdictional
provisions were designed to preserve tribal sovereignty over the domestic
relations of tribe members and to confirm a developing line of cases which
held that the tribes exclusive jurisdiction could not be defeated by the
temporary presence of an Indian child off the reservation.265 While the
dissent agreed that domicile on the reservation is a prerequisite to exclusive
tribal jurisdiction, it regarded the parents move off the reservation
sufficient to establish a new domicile and their decision to voluntarily
relinquish custody of their children sufficient to vest jurisdiction in the state
court.266
The Supreme Courts decision in Mississippi Band of Choctaw
Indians left many other issues unresolved, such as the relevance of a tribal
social relationship and physical presence on the reservation to ICWAs
jurisdictional mandates. Lower courts that examined these issues in the
context of tribal court wardship decisions are split on ICWAs
applicability, with one line of cases finding exclusive tribal jurisdiction
under the majoritys broad construction of ICWAs purposes, and another
finding no tribal jurisdiction by applying the dissents more constrained
interpretation.
The decisions in the first line of cases follow the D.L.L. and M.R.D.B.
approach, which focuses on the nature of the tribal interests and the tribal
actions and involvement in the child welfare matter, rather than on a single
determinative factor such as domicile. For example, in Owens v. Willock,267
the Louisiana Court of Appeals sanctioned the jurisdiction of an Alaskan
Native Village over an intra-family Indian child custody dispute, despite
the childs extended residency outside the Village, since the childs initial
placement and adoption were approved by an order of the Kotzebue IRA
Council, an Alaskan Native Village. Dismissing the adoptive parents
challenges to ICWAs applicability under the existing Indian family
265. Id. at 58 (emphasis added). The dissent stated further that Congress specifically
approved a series of cases in which the state courts declined jurisdiction over Indian
children who were wards of the tribal court[.] Id. (citing In re Buehl, 555 P.2d 1334 (Wash.
1976); Wakefield v. Little Light, 347 A.2d 228 (Md. 1975)). Those cases included children
whose parents were temporarily residing off the reservation[.] Id. (citing Wisconsin
Potowatomies of Hannahville Indian Community v. Wakefield, 393 F. Supp. 719 (W.D.
Mich. 1973)). The dissent stated that Congress approved state court jurisdiction over Indian
children who had never lived on a reservation and whose Indian parents were not then
residing on a reservation. Id. at 58-59 (citing In re Greybull, 543 P.2d 1079 (Or. Ct. App.
1975)). For a discussion of these cases, see supra Part I.
266. Mississippi Band of Choctaw Indians, 490 U.S. at 63.
267. 690 So.2d 948, 950-51 (La. Ct. App. 1997).
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268. Id. at 950. The child had been born in Alaska and parental rights were relinquished
before the Council, which then approved an adoption by a member of the family. Id. at 951.
The adoptive parents lived in Louisiana and the child had had no contact with the Village in
the five years in their custody. Id. at 950.
269. Id. at 951.
270. Id.
271. Id. (citing In re M.R.D.B., 787 P.2d 1219 (Mont. 1990)). See also supra notes 242-
259 and accompanying text for further discussion of M.R.D.B. The court further declined to
find that the defendants familial bonds with the child divested the Tribal Council of
jurisdiction, stating that while separation at this point may cause pain and hardship due to
the Councils exclusive jurisdiction under ICWA, the best interest of the child is not the
question for this court to decide. Id. at 951-52.
272. No. E1999-02539-COA-R3-CV, 2000 WL 1545064, at *2 (Tenn. Ct. App. Oct. 18,
2000).
273. Id.
274. In re G.R.F., 569 N.W.2d 29, 33 (S.D. 1997). The court further stated, In enacting
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G.R.F., the court also grappled with the issue of when jurisdiction attaches,
an issue closely associated with domicile. Following the rule that
jurisdiction in the Indian child custody matter is determined at the initiation
of the state court proceedings,275 the court determined that the mothers
domicile was on the Pine Ridge Reservation at the time the state court
proceeding was filed, notwithstanding her transient lifestyle and residency
off the reservation at the time of the childs birth. Accordingly, since the
child took the mothers domicile, exclusive jurisdiction was vested in the
tribal court.276 In response to the States criticism that the mothers claim of
a reservation domicile as a self-serving maneuver intended to avoid the
authority of the state court, the South Dakota Supreme Court rejoined that
such arguments do not stand on the same ground when the question of
proper forum involves ICWA, which has as its purpose tribal self-
government and the tribes interest in the welfare of its children.277 These
essential relations, noted the court, find no parallel in other ethnic
cultures.278 Finding guidance in Mississippi Band of Choctaw Indians, the
court stated:
The protection of this tribal interest is at the core of the ICWA,
which recognizes that the tribe has an interest in the child which
is distinct from but on a parity with the interest of the
parents. . . . It is a relationship that many non-Indians find
difficult to understand and that non-Indian courts are slow to
recognize. It is precisely in recognition of this relationship,
however, that the ICWA designates the tribal court as the
exclusive forum for the determination of custody and adoption
matters for reservation-domiciled Indian children, and the
preferred forum for nondomiciliary Indian children.279
The jurisdictional timing rule of G.R.F. was applied a few years later
in another case before the South Dakota Supreme Court, which found that
at the time of filing, the Indian mother resided off reservation.280 The court
the jurisdictional provisions of ICWA, Congress intended that as a general principle, Indian
tribes should have authority to determine custody involving Indian children. Id. at 32
(quoting In re Halloway, 732 P.2d 962, 968 (Utah 1986)).
275. Id. at 34 (following Halloway, 732 P.2d at 966).
276. Id. at 33. The mother submitted a sworn affidavit averring to her domicile on the
reservation. Id.
277. Id. at 35.
278. Id. at 36.
279. Id. (citing Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 52-53
(1989) (internal citations omitted)).
280. In re S.G.V.E., 634 N.W.2d 88, 92-93 (S.D. 2001) (per curiam).
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also found that her children were not wards of the tribal court,281 since the
tribal court order concerning the childrens custody lacked any reference
to [its] continuing jurisdiction over these children and constituted a final
order, thus relieving the tribal court of any authority over the childrens
care or custody.282 The courts more exacting analysis of domicile and the
tribal court order in this case than in D.L.L., most certainly relates to its
particular facts, principally the mothers return to the Pine Ridge
Reservation to avoid state jurisdiction, essentially to use ICWA to keep
from having her parental rights terminated,283 as well as her history of
severe emotional and physical neglect and abuse.284 In this case, the
technicalities of the law were overcome by the courts social welfare
interests of the children. We have always recognized that the needs of the
children are paramount and that their best interests must prevail.285
Recently, tribal jurisdiction pursuant to a wardship determination
presented an issue of first impression to the Nebraska Court of Appeals. In
In re Dakota,286 a dependency and neglect case involving a mother and her
five children, all members of the Omaha Tribe of Nebraska, the mother
challenged the state courts jurisdiction claiming that her children were
wards of the Omaha Tribal Court.287 After considering the divergent views
of tribal wardship jurisdiction under T.R.M. and M.R.D.B.,288 and without
281. Id.
282. Id. at 92-93. In contrast to the temporary tribal court order in D.L.L., in this case the
court found that the tribal court order was a final order since it returned the children to the
mothers care without further court supervision. Id. (citing In re D.L.L., 291 N.W.2d 278,
282 (S.D. 1980)).
283. Id. at 91.
284. Id. at 89, 94 (upholding the trial courts finding of good cause not to transfer the
case to the tribal court and termination of the mothers parental rights). The decision
described the mothers extensive history of alcohol abuse and involvement with violent
men. Id. at 89. According to psychological evaluations, both children suffered from serious
psychological symptoms . . . . [Such symptoms were] consistent with an impoverished early
childhood. According to the court, serious emotional or physical damage would likely
result if the children were returned to their mother. Id.
285. Id. Other courts have resisted delving into an examination of the best interests of the
children finding the courts proper role in ICWA cases is to decide the legal issues, not the
merits of the placement decision. See, e.g., notes 45, 259, and 271 and accompanying text.
286. In re Dakota, 712 N.W.2d 583 (Neb. App. 2006).
287. Id. at 586, 592.
288. Id. at 592-93. The court noted that in T.R.M., the tribal court had not enacted a
valid wardship of the child, and therefore, exclusive jurisdiction could not exist . . . id. at
592, while M.R.D.B., the mother submitted herself to the jurisdiction of the tribal court and
the tribal court had repeatedly referred to the child as a ward in its orders. Id. at 593
(citing In re T.R.M., 525 N.E.2d 298 (Ind. 1988)). See supra notes 228-241; In re M.R.D.B.,
787 P.2d 1219 (Mont. 1980); supra notes 242-259 and accompanying text.
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any information about the actions of the Omaha Tribal Court, the Nebraska
Court of Appeals concluded that it had insufficient evidence to determine
that the children were subject to the jurisdiction of the Omaha Tribal
Court.289 Leaving open the possibility that tribal court jurisdiction could be
established in subsequent proceedings, the Nebraska Court of Appeals
found that although the state court properly exercised initial jurisdiction, its
failure to give the Tribe adequate notice as required under ICWA required
reversal of the state courts adjudication of the children on the merits.290
The Dakota decision provides constructive guidance on the issues of
wardship jurisdiction in tribal courts. For one, it definitively recognizes
exclusive tribal jurisdiction over wards of the court under both ICWA and
the Nebraska ICWA statute.291 For another, it recognizes that the
jurisdiction of tribal courts is an issue of subject matter jurisdiction
[which] can be raised at any time by any party or by the court sua
sponte.292 By emphasizing the significance of this jurisdictional premise,
the decision signifies the importance of setting out the tribal courts
authority and of participating in subsequent state court proceedings.293 It
also indicates the courts respect and deference to the tribes authority over
child welfare matters under ICWA.
sister. At the time of the initial proceedings, J.D.M.C. lived with her father
in Sisseton, South Dakota, on fee lands geographically located within the
original borders of the Lake Traverse Reservation.295 The childs parents
shared joint legal and physical custody of their daughter through a divorce
decree.296 The parents had another daughter who died of hyperthermia in
August 2005 after being left in the fathers car while he was at work in
Minnesota.297 Shortly after the accident, the Tribes Child Protection
Program filed an emergency custody petition with the SWO seeking
emergency custody of J.D.M.C. pending a placement hearing.298 The
mother also filed an abuse and neglect petition in the SWO seeking
removal of J.D.M.C. from her ex-husbands custody. The SWO granted the
Child Protection Programs petition and declared J.D.M.C. a ward of the
tribal court and issued an order to secure her emergency custody.299
In a subsequent hearing, the SWO affirmed its jurisdiction pursuant to
tribal law and, over arguments from J.D.M.C.s father who fully
participated in the hearing, issued a detailed and comprehensive order
setting out findings of fact and conclusions of law.300 Two principal factors
295. Id. at 799. As described by the court, Sisseton does not rest on the checkerboard of
Indian land that resulted from the diminishment. Id. at 802. The history of the Lake
Traverse Reservation and the judicial disestablishment of the reservation boundaries by the
United States Supreme Court in DeCoteau v. District County Court, 420 U.S. 425, 449
(1975), are discussed supra, notes 84-99 and accompanying text.
296. In re J.D.M.C., 739 N.W.2d at 799. The mother, who otherwise resided on the Lake
Traverse Reservation, temporarily lived in Biloxi, Mississippi, where she was stationed in
the military. While the mother was stationed in Biloxi, the couple agreed that their children
would live with the father in Sisseton. Id. The mothers domicile became a pivotal
jurisdictional point for the South Dakota Supreme Court, which refused to accept either the
circuit court or the SWOs conclusion that she was domiciled on the reservation, see Brief
of Appellee Sisseton-Wahpeton Oyate Tribe, 2006 WL 4961486 at, *7 (June 27, 2006)
[hereinafter Appellee Tribes Brief], finding instead that the record before the SWO was
completely devoid of evidence or facts supporting [this] conclusion. Id. at 803. In any
event, the South Dakota Supreme Court determined that J.D.M.C.s domicile was that of her
father, with whom J.D.M.C. was living at the time the proceedings in the SWO commenced.
Id. at 803-04 (following In re T.R.M., 525 N.E.2d 298 (childs domicile is the same as
parent with whom child is living)).
297. In re J.D.M.C., 739 N.W.2d at 779. The childs death was investigated but
no criminal charges were brought against the father. Id.
298. Id. With no state action being taken, J.D.M.C.s mother had filed an earlier abuse
and neglect petition in the SWO, which then had issued an emergency custody order for
J.D.M.C. Id. That order was not recognized or enforced by the state court under South
Dakotas comity statute, S.D.C.L.1-1-25, because the father was entitled to a custody
hearing. Id.
299. Id. at 800 n.3.
300. Appellee Tribes Brief, supra note 296, at *9-10.
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301. The SWO found that the mothers temporary residence off the reservation for
military duty did not destroy her reservation domicile. Appellee Tribes Brief, supra note
296, at *14.
302. Id. at *15-16. A copy of the CPS Agreement is appended to Appellee Tribes Brief,
supra note 296, at App. A-2 [hereinafter CPS Agreement] (on file with author and the New
England Law Review).
303. CPS Agreement, supra note 302 at A-3.
304. Id.
305. In re J.D.M.C., D-05-619-490, at 4 (Sisseton-Wahpeton Sioux Tribal Ct., Aug. 30,
2005). The SWO decision is appended to the Appellant Fathers Brief, and a copy is on file
with the author and the New England Law Review.
306. Appellee Tribes Brief, supra note 296, at *17. See also In re J.D.M.C., 739 N.W.2d
796, 800, 802-03 (S.D. 2007) (discussing the comity hearing in the circuit court).
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full faith and credit provision.307 On appeal, the father maintained his
objection to the tribal courts jurisdiction, and challenged the circuit courts
determination that the SWO had exclusive jurisdiction over his daughter
and its order was entitled to be enforced.308
Any way the South Dakota Supreme Court resolved this case would
be a great impact on future Indian child custody proceedings involving
wardship determinations in tribal courts. In evaluating the scope of this
jurisdiction, it is the character of the authority that the tribe seeks to assert,
not merely the geographic location of the events. The starting point for this
analysis is the premise that tribes, as independent political entities within
the federal constitutional system, exercise inherent powers of self-
government, most particularly over internal relations. Tribal adjudication of
child custody disputes involving Indian children is a necessary corollary to
tribal self-government and internal tribal matters.309 Congress viewed this
authority as vital to maintaining tribal identity:
We think it plain that child-rearing is an essential tribal
relation within the test of Williams v. Lee. [T]here can be no
greater threat to essential tribal relations and no greater
infringement on the right of the . . . tribe to govern themselves
than to interfere with tribal control over the custody of their
children. . . .310
The logical inference of this tenet is that a tribes sovereign authority
extends beyond its territorial boundaries to safeguard and regulate such
essential tribal relations.311 Following this principle, the South Dakota
Supreme Court has held that, in one of the first cases decided under ICWA
and one that involved a tribal wardship determination, even though a
307. In re J.D.M.C., 739 N.W.2d at 800. In effect, the circuit court found South Dakotas
comity statute, S.D.C.L. 1-1-25, preempted by ICWA. In the alternative, the court found
that the SWO order met the requirements of S.D.C.L. 1-1-25. Id.
308. Id. at 804 (S.D. 2007).
309. Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 49 (1989)
(Congress was concerned not solely about the interests of Indian children and families, but
also about the impact on the tribe themselves . . .).
310. House Report, supra note 1, at 7537 (internal parentheses and ellipses omitted)
(quoting Wakefield v. Little Light, 347 A.2d 228, 234, 237-38 (Md. 1975) and citing
Williams v. Lee, 358 U.S. 217, 219 (1959); Wisconsin Potowatomies v. Houston, 393 F.
Supp. 719, 733-34 (W.D. Mich 1973)).
311. John v. Baker, 982 P.2d 738 (Alaska 1999), cert. denied, 528 U.S. 1182 (2000)
(finding that Alaskan Native villages retain concurrent jurisdiction to adjudicate disputes
between tribal members and such judgments should be accorded comity in state court). The
court stated, Tribes not only enjoy the authority to exercise control within the boundaries
of their lands, but they also possess the inherent power of regulating their internal and social
relations. Id. (internal quotations and footnote omitted)).
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312. In re D.L.L., 291 N.W.2d 278, 281 (S.D. 1980) (internal citations omitted); see
supra notes 191-213 and accompanying text.
313. Baker, 982 P.2d at 756 (internal quotes and footnotes omitted).
314. The state corollary to this principle of extra-territorial authority is that [s]tate
sovereignty does not end at a reservations border. Nevada v. Hicks, 533 U.S. 353, 361
(2001) (holding that when state interests outside the reservation are implicated, states may
regulate the activities of tribal members on tribal land and that the tribe had no jurisdiction
to regulate state officials for their investigatory activities on tribal lands arising from an
alleged off-reservation crime). Our cases make clear that the Indians right to make their
own laws and be governed by them does not exclude all state regulatory authority on the
reservation. Id.
315. See Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 49 (1989)
([W]e must defer to the experience, wisdom, and compassion of the [Choctaw] tribal
courts to fashion an appropriate remedy.) (quoting In re Halloway, 732 P.2d 962, 972
(Utah 1986)) (alteration in original).
316. Fisher v. Dist. Court, 424 U.S. 382, 386-89 (1976). Tribes require no express
congressional delegation of the right to determine custody of tribal children. Baker, 982
P.2d at 759-61.
317. 25 U.S.C. 1911(a) (2000).
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the SWOs jurisdiction on the merits, justified on the basis that the absence
of a transcript of the tribal proceedings prevents us from reviewing
whether these questions were fully and fairly litigated . . . ,333 not only
belies compelling precedents to the contrary,334 it also evidences
misgivings about the constancy of the SWO.335
Attempting to dispel the local medias depiction of the case as the
tribal courts use of excessive authority in removing an Indian child from a
non-Indian, the tribal chairman retorted, The South Dakota Supreme
Courts decision has upset 29 years of good working relations between the
Oyate and the State and has brought uncertainty and confusion into the
child welfare system on the Lake Traverse Reservation.
Chairman Selvage further explained:
For [twenty-nine] years the State of South Dakota Department of
Social Services and the Oyate have had a written agreement in
place directing and authorizing the Oyate and its Child
Protection Program to investigate instances of neglect and abuse
of all Indian children within the original territory of the Lake
Traverse Reservation. Under this agreement, state, county and
local law enforcement officials refer all reports of alleged abuse
and neglect of Indian children to the Oyates Child Protection
Program, which then investigates the allegations and files
appropriate petitions with the Oyates Tribal Court to protect
these children. . . . If an Indian child is being neglected or abused
in the town of Sisseton or other towns located on fee land, who
has the responsibility to protect that child? . . . The Oyate care
about their children and want to continue to protect Indian
children on the Lake Traverse Reservation. The Oyates children
deserve the protection of the Tribe itself irrespective of who the
childrens parents are. The Oyate call upon the State of South
Dakota and its DSS to clarify their mutual operating agreement
and to restore the harmony of the past [twenty-nine] years and to
restore protection for Oyate children on the Lake Traverse Indian
Reservation.336
CONCLUSION
ICWAs tribal wardship provision is remarkably constructive. It is a
rough mixture of territorial and personal criteria, which defies being
delimited by any territorial boundaries because it matters both where
things happen and to whom they happen.337 Tribes, as unique political
entities in our federal system of government, possess inherent attributes of
sovereignty to exercise control over their lands and to regulate their internal
social relations. ICWA is premised on this dual nature of tribal sovereignty,
and allows, if not encourages, tribes to redefine their relationship to state
governments by recognizing that the power to adjudicate internal matters,
including child custody matters, derives from a source independent of the
land.
The welfare of Indian children lies at the heart of tribal sovereignty.
Thus, there are no real boundaries to protecting these essential tribal
relations where the exercise of tribal authority is vital to the maintenance of
tribal identity and self-determination.