Kunesh: Borders Beyond Borders

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FINAL 1/4/2008 2:36:33 PM
ARTICLES
BORDERS BEYOND BORDERS

PROTECTING ESSENTIAL TRIBAL
RELATIONS OFF RESERVATION
UNDER THE INDIAN CHILD
WELFARE ACT
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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16 NEW ENGLAND LAW REVIEW [Vol. 42:15
boundary line between state and tribal power, particularly as to Indian

children located outside a tribes geographic territory. This Article attempts
to demarcate that line. From an examination of the historical development of
tribal wardship decisions and ICWAs legislative history, material
unexamined in this context in other scholarship, I posit that that there should
be no fixed geographic boundary delimiting tribal jurisdiction over Indian
children who are wards of the tribal court. 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 its identity and self-determination.
[T]here can be no greater threat to essential tribal relations,

and no greater infringement on the right of [tribes] to govern
themselves than to interfere with tribal control over the custody
of their children.**
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. . . .
Because of poverty and discrimination Indian families face many

difficulties, but there is no reason or justification for believing
that these problems make Indian parents unfit to raise their
children. . . . Up to now, however, public and private welfare
agencies seem to have operated on the premise that most Indian
children would really be better off growing up non-Indian. The
result of such policies has been unchecked, abusive child-
removal practices, the lack of viable, practical rehabilitation and
prevention programs for Indian families facing severe problems,
and a practice of ignoring the all-important demands of Indian
tribes to have a say in how their children and families are dealt
with.1
** Wakefield v. Little Light, 347 A.2d 228, 237-38 (Md. 1975).

1. Problems that American Indian Families Face in Raising Their Children and How
These Problems Are Affected by Federal Action or Inaction: Hearing on Indian Child
Welfare Program Before the Subcomm. on Indian Affairs of the S. Comm. on Interior and
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2007] BORDERS BEYOND BORDERS 17
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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reservation.6 A significant, yet often overlooked, facet of ICWAs

jurisdictional scheme is wardship determinations, a remarkably
constructive jurisdictional premise because it posits exclusive jurisdiction
with the tribe irrespective of the childs domicile,7 because such tribal
determinations are entitled to be recognized and enforced in state courts.8
ICWAs wardship jurisdictional provision actually is a codification of
well-established judicial principles that recognize Indian tribes unique
status in American law9 whose inherent powers of self-government in
internal matters,10 particularly in the care and custody of Indian children
which entail essential tribal relations, cannot be defeated by their absence
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
11. Child-rearing is one such essential relation. See Wisconsin Potowatomies of

Hannahville Indian Community v. Houston, 393 F. Supp. 719, 729, 734 (W.D. Mich. 1973)
(citing Williams v. Lee, 358 U.S. 217, 219 (1959)). Tribal authority over essential tribal
relations generally is viewed as being both territorially-based, with the courts focus being
on situs of the activity, as well as being membership-based, with the courts focus being on
the character of the relationship between the tribe and its members. See infra text
accompanying notes 133-139, 182, 220-222, 310.
12. 358 U.S. 217 (1959). In Williams, the Supreme Court held that a non-Indian could
not sue an Indian in state court for a civil claim arising on the reservation, stating a general
rule that absent governing Acts of Congress, the question has always been whether the
state action infringed on the right of reservation Indians to make their own laws and be ruled
by them. Id. at 220. State authority over internal tribal affairs would be permitted only
where essential tribal relations were not involved. See id. at 219-20. The Court determined
that the exercise of state jurisdiction in these situations would undermine the authority of
the tribal courts over Reservation affairs and hence would infringe on the right of the
Indians to govern themselves. Id. at 223.
13. 411 U.S. 164 (1973). While generally affirming the Williams principles, supra notes
10 and 12, the Supreme Court struck down the state tax on income earned by an Indian on
the reservation, and redefined the parameters of tribal sovereignty vis--vis state authority
within a reservation: [T]he trend has been away from the idea of inherent Indian
sovereignty as a bar to state jurisdiction and toward reliance on federal pre-emption. The
modern cases . . . look instead to the applicable treaties and statutes which define the limits
of state power. McClanahan, 411 U.S. at 172 (footnote and citation omitted). This view of
tribal sovereignty will be referred to as the Williams-McClanahan construct.
14. 411 U.S. 145 (1973). In upholding state gross receipts taxes on the Tribes off
reservation commercial activities, the Supreme Court held that nondiscriminatory state laws
otherwise applicable to all citizens of the state are presumed to apply to Indians outside the
reservation unless there is express federal law to the contrary. Id. at 148-49. This view of
tribal sovereignty will be referred to as the Mescalero construct.
15. See generally Allison M. Dussias, Geographically-Based and Membership-Based
Views of Indian Tribal Sovereignty: The Supreme Courts Changing Vision, 55 U. PITT. L.
REV. 1 (1993) (arguing that the Supreme Courts modern approach to tribal sovereignty has
retreated from the geographically-based aspects of its early Indian law decisions and has
moved toward membership as the basis for assertion of tribal authority).
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notions of state court jurisdiction over family relations,16 and has

persistently provoked questions about the precise contours of tribal
sovereignty and the boundary line between state and tribal power.
Part I of this article examines the origins of this century-long conflict
and the parallel development of tribal wardship jurisprudence emerging
from the Williams-McClanahan and Mescalero concepts of tribal
sovereignty, as well as two critical Supreme Court cases decided during the
congressional hearings on the proposed ICWA legislation that dramatically
changed the contours of tribal jurisdiction over child welfare matters. Part
II traces the continuing jurisdictional tension between tribes and states in
ICWAs legislative history and the inclusion of the wardship provision into
the Act, material unexamined in this context in other scholarship. Wardship
cases decided after the ICWA, reviewed in Part III, provide important
insights into contemporary issues concerning assertion of tribal jurisdiction
beyond reservation borders. I attempt to reconcile these jurisdictional
conflicts by knitting together congressional intent and fundamental
sovereignty considerations which confirm that Indian tribes, as sovereign
governments, are necessary participants in any decision involving the
possible removal of an Indian child from his or her family, ultimately
positing that these tribal rights to protect essential tribal relations do not
stop at the reservation border.
I. JURISDICTIONAL ORIGINS
A. The Courage of Lelah-Puc-Ka-Chee and Little Light

The inherent sovereign power of Indian tribes over internal and
domestic matters involving tribal members has been recognized since the
beginning of our federal system of government.17 As unique aggregations
possessing attributes of sovereignty over both their members and their
territory, tribes not only enjoy the authority to exercise control within the
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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and remove them to schools situated beyond the reservation,

without the consent of their parents or next of kin, but, on the
contrary, the consent of the parents is made a condition to such
removal, as well as in cases wherein it is proposed to place
Indian children in white families.26
Admonishing the state official and school superintendent against such
coercive practices, the court fittingly instructed them that to secure the
voluntary attendance of Indian children at school, the good will and
confidence of the adults of the tribe must be acquired. This will doubtless
require time, and careful and discreet conduct on the part of the officials.27
The federal courts opinion in Lelah-Puc-Ka-Chee established three
important and resonating jurisdictional principles. One is that the state had
no authority over Indian children residing within an Indian reservation.
Another is that tribes are necessary parties in decisions concerning the
welfare and care of Indian children. The final is the imperative that states
respect tribal family relationships. These relationships, strong, intact and
resilient, were shamefully ignored by the state. 28
B. The Williams-McClanahan Construct and Essential Tribal

Interests
Almost a century after Lelah-Puc-Ka-Chee, another federal district
court significantly expanded on these jurisdictional precepts. In Wisconsin
Potowatomies of Hannahville Indian Community v. Houston,29 the
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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Michigan Department of Social Services took emergency custody of three

Indian children who lived with their non-Indian mother off the Hannahville
Indian Community Reservation at the time of their parents tragic death.30
The children were then sent to Florida with their maternal relatives despite
the interest of their fathers family and the Tribe in their welfare.31
Thereafter, the Tribe filed an action in federal district court against
the director of the Michigan Department of Social Services claiming that it,
not the state, had exclusive authority to determine the custody of the
children.32 The federal court embarked on a course of education about the
Tribes laws and customs, taking judicial notice of the Tribes constitution
and codified law33 and hearing testimony about the Tribes history,
customs, and culture with respect to kinship and child-rearing practices.34
This investigation, as well as two important Indian law cases decided
contemporaneously by the Supreme Court, would inform the courts
ultimate jurisdictional determination.35
In Mescalero Apache Tribe v. Jones,36 the Court enunciated the
general rule that Indians who go beyond the reservation borders are
generally subject to state authority; in this case, the states taxing authority.
In McClanahan v. Arizona State Tax Commissioner,37 the Court struck
down the states income tax on a reservation Indian finding that, under the
rule of Williams v. Lee, the state law would impermissibly interfere with
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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jurisdiction with the tribe.

The court finds that the care and custody of Indian children is a
matter of Indian concern and interest, and is, therefore, an
internal Indian affair within the meaning expressed in numerous
federal decisions . . . .
The determination of permanent custody of the children,

therefore, as a question involving the affairs of reservation
Indians residing on the reservation, remained, under settled
principles of law, within the exclusive jurisdiction of the tribe.45
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
[T]ribal custom existed, was followed in spirit and largely in practice

until frustrated by the actions of employees of the Michigan Department
of Social Services. . . . [T]he tribe has a traditionalthough not a
procedurefor care and custody of orphaned children members, and
that this tradition was followed to the extent possible with respect to the
. . . children after the death of their parents.
Id. at 733-34.
45. Wisconsin Potowatomies of Hannahville Indian Community, 393 F.Supp. at 734
(citing Worcester v. Georgia, 31 U.S. 515 (1832); Williams v. Lee, 358 U.S. 217 (1959);
Kennerly v. Dist. Court, 400 U.S. 423 (1971); McClanahan v. State Tax Commn, 411 U.S.
164 (1973)). The court judiciously stated that its responsibility was limited to deciding the
jurisdictional issue and not the question of the best interests of the children, although it also
noted that federal courts have an independent obligation to ensure that no actual harm or
damage come to the children. Id. at 727.
46. 347 A.2d 228 (Md. 1975).
47. Id. at 230.
48. Id.
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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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despite the states significant interests in the childs custody, as

supported by the Mescalero construct, the court concluded that other
Supreme Court cases, including particularly Williams v. Lee and federal
statutes . . . recognize the significant interests of Indian self-government.57
On balance, the Maryland Court of Appeals founded its decision on
several compelling considerations favoring exclusive tribal jurisdiction
over the child custody proceeding. For example, the Crow Tribal Court had
initially adjudicated the child welfare matter, determined Allies custody,
and approved the Wakefields guardianship arrangement. Thereafter, the
tribal court continued to be actively involved in his case.58 Additionally, the
Court of Appeals was vocally apprehensive about interfering with this
tribal authority, stating there can be no greater threat to essential tribal
relations, and no greater infringement on the rights of the Crow Tribe to
govern themselves than to interfere with tribal control over the custody of
their children.59 The court then carefully considered Allies residence off
the reservation with his tribally-appointed guardians, ultimately concluding
that they had no legal authority to change the childs domicile. As noted by
the court, the special vestiges of Indian sovereignty concerning essential
tribal relations like child-rearing and tribal identity reinforce the policy not
to easily imply the guardians authority to shift domicile to another state.60
Accordingly, Allies domicile remained on the Crow Reservation pursuant
to the authority of the Crow Tribal Court, which thus had exclusive
jurisdiction over Allies care and custody.61
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
tribes off-reservation activities in upholding states authority to tax).

57. Wakefield, 347 A.2d at 237 (internal citations omitted).
58. Id. at 237-38.
59. Id.
60. Id. at 238 (citing RESTATEMENT (SECOND) OF CONFLICT OF LAWS 22(2) cmt. h
(1969)).
61. Id. at 238.
62. 555 P.2d 1334 (Wa. 1976).
63. Id. at 1336. Mr. Anderson was a member of the Blackfeet Tribe and his wife was a
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limited the Andersons guardianship of Daniel to a period of one year and

specifically required them to return the child in the event his mother
regained custody of her son.64 Six months after the placement, the tribal
court returned custody of Daniel to his mother, but the Andersons, who had
moved to Washington, refused to comply with the tribal court order.65
Employing the Mescalero construct, the Andersons disputed the Blackfeet
Tribal Courts authority over their adoption proceeding since Daniel no
longer resided on the Blackfeet Reservation.66
A key consideration in the courts analysis of the issue presented, the
continuing force and influence of the Blackfeet Tribes sovereignty beyond
its reservation borders,67 was the domicile status of a ward of a tribal court,
for which very little authority existed.68 Finding guidance in the
Restatement (Second) of Conflict of Laws 22, the Washington Supreme
Court laid out the following jurisdictional rules. From the general tenet that
[e]ven when the guardian is permitted to remove the child to a new
location, the child will be held not to have acquired a new domicile if the
guardians authority did not extend to fixing the childs domicile there,69
the court determined that the domicile of a child who is a ward of the tribal
court is the location of the order-issuing court.70 Another principled tenet,
that the authority of the guardian to establish a new domicile must be
ascertained by interpreting the courts various orders and decrees in the
light of the circumstances attending their issuance,71 directed the court to
the Blackfeet Tribal Law and Code, which granted broad authority to the
tribal court over child neglect and abuse matters.72 Applying the
member of the nearby Shoshone Bannock Tribe. Id.

64. Id.
65. Id.
66. See id. at 1339.
67. The Washington Supreme Court rejected the Andersons first argument that it had
jurisdiction under the Act of August 15, 1953, Public Law 83-280, 67 Stat. 588, a federal
law pursuant to which Washington acquired civil jurisdiction over reservations in that state,
finding that state law applied only to Indian country, and Indian residents of such
reservations, within the borders of this state. Id. For further discussion about the
jurisdictional impact of Public Law 83-280, see infra note 141.
68. See In re Buehl, 555 P.2d at 1339-43.
69. Id. at 1341 (citing RESTATEMENT (SECOND) OF CONFLICT OF LAWS 22 and cmt. h
(1971)).
70. Id. at 1340-41.
71. Id. at 1341 (quoting RESTATEMENT (SECOND) CONFLICT OF LAWS 22 cmt. h
(1971)).
72. See id. at 1336. The Blackfeet Tribal Court has original jurisdiction in all
proceedings coming within the terms of this Chapter [(the Juvenile Code)]. Id. at 1342
n.10 (quoting Blackfeet Tribal Code, Ch. 7, 2 (1999),
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Restatements rules of domicile in guardianship arrangements, the

Washington Supreme Court determined that Daniels domicile was fixed in
the Blackfeet Tribal Court even though he resided off the Blackfeet
Reservation at the time of the state court proceedings, reasoning that in the
legal sense, Daniel did not go beyond the reservation boundaries and
become subject to Washington jurisdiction.73 Since the Blackfeet Tribal
Court had retained exclusive jurisdiction over Daniel Buehls custody, its
order was valid and entitled to be recognized in state court.74
The constituent fact pattern emerging from these cases illustrates the
most favorable circumstances for the application of the Williams-
McClanahan construct supporting tribal self-government. It begins with an
Indian child who is physically removed from the reservation by the childs
guardian, someone in whose care the childs custody has been entrusted
either by the parent or the tribe, and who subsequently refuses to return the
child to the parent or tribe. The ensuing legal dispute pits the tribes claim
of sovereignty over reservation-based domestic relations matters against
the states assertion of authority based on the childs physical presence
within the states jurisdiction under the Mescalero construct. The reviewing
court must evaluate its own jurisdiction, as well as its normative
jurisprudence, and carefully balance the competing claims and interests of
both the tribe and the state in the Indian child custody proceeding,
frequently suppressing its inclination to consider the childs best interest.
The Williams-McClanahan construct delineates the parameters of this
evaluation. State law most clearly interferes with the tribes right of self-
government and impermissibly intrudes upon essential tribal relations when
the tribal court has taken legal action in accordance with its governing
available at http://www.narf.org/nill/Codes/blackfeetcode/blftcodetoc.htm) (alteration in

original). The Tribal Courts jurisdiction includes proceedings to determine whether a child
is neglected, dependent or delinquent and the Tribal Code authorizes the Tribal Court to
make such orders for the commitment, custody and care of the juvenile and take such
other actions as it may deem advisable and appropriate in the interests of the juvenile and
the interests of the Tribe. Id. (quoting Blackfeet Tribal Code, Ch. 7, 4, 7A). Section IB
of the Blackfeet Tribal Code defined juvenile as any Indian, male or female, under the
age of 18 years and section 2 of the Tribal Code provides that the [c]ourt shall have
continuing jurisdiction until the juvenile reaches age 18. Id. at 1342 n.9 (quoting Blackfeet
Tribal Code IB, 2). The Tribal Code specifically authorized the court to remove
neglected, dependent or delinquent juveniles from the reservation . . . on condition that
[the] custodian produce the juvenile when required by the Court. Id. at 1340 n.7 (quoting
Blackfeet Tribal Law and Order Code of 1967, Ch. 7, 7.F).
73. See In re Buehl, 555 P.2d at 1341 (citing Mescalero Apache Tribe v. Jones, 411 U.S.
145, 145 (1973)).
74. Id. at 1342 (citing Jim v. CIT Financial Serv. Corp., 533 P.2d 751 (N.M. 1975)). The
court also applied the clean hands doctrine to reject the Andersons attempt to relitigate a
matter previously determined adversely to them. Id. at 1343.
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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.
E. The Juxtaposition of DeCoteau and Fisher

The Williams-McClanahan and Mescalero constructs encountered
different fates before the United States Supreme Court in two Indian child
welfare cases decided during the congressional hearings and debates on the
proposed ICWA legislation, each revealing distinct aspects of the Indian
child welfare crisis and significantly influencing the ICWA legislation. In
DeCoteau v. District County Court,76 the Supreme Courts focus on the
status of the land on which the events occurred, with its finding that the
tribes reservation had been disestablished, reinforced the States
arguments under the Mescalero construct and later prompted Congress to
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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redefine the term reservation in the proposed ICWA legislation. In Fisher

v. District Court,77 the Court readily applied the Williams-McClanahan
construct to conclude that tribal courts possess exclusive jurisdiction over
reservation-based child custody and adoption determinations. The Fisher
decision became the judicial underpinning for ICWAs jurisdictional
provisions.
The principles of tribal self-governance over matters of essential
tribal relations, so emphatically sanctioned in the Williams-McClanahan
construct, made little impression on the Supreme Court in DeCoteau, yet
the facts of the case revealed the very type of abusive child welfare
practices and due process violations that ICWA was enacted to curtail. In
1971, the State of South Dakota brought dependency and neglect
proceedings against Cheryl DeCoteau, seeking to terminate her parental
rights.78 DeCoteau and her three children, all members of the Sisseton-
Wahpeton Sioux Tribe, lived on the Lake Traverse Reservation, which was
established by a treaty between the Tribe and the federal government in
1867.79 According to DeCoteau, state social workers removed her children
without her knowledge or permission, and without giving her notice of a
hearing.80 DeCoteau was told that she wasnt a very good mother . . . and
that [her] children were better off being in a white home.81 With the
assistance of legal counsel, DeCoteau finally obtained hearings on the
States charges and its petitions to terminate her parental rights, and she
eventually regained custody of her children.82
77. 424 U.S. 382 (1976) (per curiam).

78. DeCoteau, 420 U.S. at 428.
79. Id. at 426, 428. DeCoteau and her attorney testified before the Senate Sub-
Committee on Indian Affairs during its hearings on the proposed Indian Child Welfare
legislation. See 1974 Senate Hearings, supra note 1, at 65-71. Some of the facts recited in
the Supreme Court opinion differ from the record in the Senate Hearings. For example, in
the Supreme Court decision, DeCoteau had two children and she voluntarily gave up one of
her sons for adoption. DeCoteau, 420 U.S. at 428. Conversely, in the Senate Hearings,
DeCoteau testified that she had three children and did not knowingly or intentionally
relinquish her child. 1974 Senate Hearings, supra note 1, at 65, 66.
80. 1974 Senate Hearings, supra note 1, at 66. According to DeCoteaus attorney,
Bertram Hirsch, [t]he original hearing was one of the grossest violations of due process
that I have ever encountered. Unfortunately, I find it is quite commonplace when youre
dealing with Indian parents and Indian children. Id. at 67. Other egregious due process
violations in the state proceedings included the failure to give personal notice of the hearing
to DeCoteau or her attorney (notice was made by publication), shifting the burden of proof
on to DeCoteau to prove that she was a fit mother rather than the state having to prove that
she was unfit, and coercing her into signing a paper in which she effectively relinquished
her other child without informing her of the consequence of her action. See id. at 67-68.
81. Id. at 66.
82. See id. at 69. DeCoteaus three children were separately removed from her at
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Throughout the state court proceedings, DeCoteau disputed the

States authority to remove her children from the Lake Traverse
Reservation, contending that under the Williams-McClanahan jurisdictional
construct, the Sisseton-Wahpeton Tribe possessed exclusive authority over
reservation-based domestic relations matters involving Indians.83 While all
of the events alleged in the states proceedings occurred within the original
borders of the Reservation, which had become an amalgamation of allotted
trust lands and ceded lands patented to non-Indians, some events occurred
on trust lands and others on non-Indian land.84 The State agreed that it
lacked such authority if the situs of the activity was indeed Indian country.
It argued, however, that a vast part of the Lake Traverse Reservation, the
non-Indian patented lands, became subject to state jurisdiction after the
Tribe ceded and sold its land to the federal government in 1891, and the
only lands remaining under tribal jurisdiction after that time were trust
allotments scattered throughout the 1867 Reservation.85
The critical issue before the Supreme Court was whether the ceded
lands remained part of the Sisseton Wahpeton Reservation, thereby
precluding State authority over Indians, or whether the land cession altered
not only the borders of the Reservation, but the jurisdictional prerogatives
of the Tribe as well.86 To resolve these competing claims of jurisdiction,
the Supreme Court delved into the history of the Lake Traverse
Reservation, the Sisseton Wahpeton Tribes land cession agreements with
the federal government, and the Tribes subsequent relationship to the
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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The federal government continued to provide assistance and services to the

Tribal community and the Tribe maintained its governmental role and
authority within this area.95
The Supreme Court examined this subsequent treatment of the Lake
Traverse Reservation, particularly through government-issued maps and
the Tribes assertion of territorial jurisdiction, both indicating some variant
understanding of consequences of the allotment process. Some versions of
the maps erased the Lake Traverse Reservation altogether. Other versions
depicted the area as an open or former reservation. More recent
versions demarcate the area simply as a reservation.96 An early tribal
constitution stated the Tribes jurisdiction as extending over Indian-owned
land within the original boundaries of the Reservation. This provision was
later replaced by a provision defining the Tribes jurisdiction to lands
within the boundaries of the reservation established in the 1867 Treaty.97
To the Courts majority, however, these historical circumstances, the
language of the 1891 Act, and its legislative history evidenced clear
congressional and tribal intent to disestablish the Lake Traverse
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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Reservation, resulting in limited tribal jurisdiction over only the retained

allotments.98 Even applying the canons of construction that require legal
ambiguities to be resolved to the benefit of the Indians,99 the Court
nevertheless found in the historical record clear expressions of tribal and
congressional intent that the Tribe did not wish to retain its former
reservation, undiminished, but rather [that] the tribe and the Government
were satisfied that retention of allotments would provide an adequate
fulcrum for tribal affairs.100
A strongly worded dissent faulted the majoritys analysis and
conclusion and, finding quite the opposite, concluded that the 1889
Agreement and the 1891 Act neither intended to effectuate a
disestablishment of the reservation from the land transactions nor were they
sufficiently clear to abrogate the Tribes 1867 Treaty.101 The dissent found
no language in the Agreement to effect an alteration of the Reservation
boundaries and rejected any inference of congressional intent to do so.102
98. DeCoteau, 420 U.S. at 445, 447.

99. Professors Kristen Carpenter and Philip Frickey offer excellent discourse on the
canons of construction in the federal Indian law context. See Kristen A. Carpenter,
Interpreting Indian Country in State of Alaska v. Venetie, 35 TULSA L. J. 73, 137 (1999);
Philip A. Frickey, Congressional Intent, Practical Reasoning, and the Dynamic Nature of
Federal Indian Law, 78 CAL. L. REV. 1137, 1140-42, 1177 (1990).
100. DeCoteau, 420 U.S. at 446-47. This conclusion conflicts with well settled principles
of diminishment and the effect of the alienation of reservation land on the tribe and its
reservation.
[O]nly Congress can divest a reservation of its land and diminish its
boundaries. Once a block of land is set aside for an Indian reservation
and no matter what happens to the title of individual plots within the
area, the entire block retains its reservation status until Congress
explicitly indicates otherwise. This approach is reflected in the federal
statutory definition of Indian country, which includes all land within
the limits of any Indian reservation . . . notwithstanding the issuance of
any patent. As long as the land transferred to nonmembers lies within
the borders of the reservation, it remains part of the reservation
notwithstanding nonmember ownership. Therefore, it should remain
subject to tribal authority . . . .
Dussias, supra note 15, at 73 (quoting Solem v. Bartlett, 465 U.S. 463, 470 (1984) (holding
that the Cheyenne River Act, which authorized the federal government to sell a portion of
the Cheyenne River Sioux Reservation for homesteading purposes, an area subsequently
populated about evenly by Indians and non-Indians, did not diminish the reservation)
(internal citations omitted); 18 U.S.C. 1151 (2000) (federal statute defining Indian
country)).
101. DeCoteau, 420 U.S. at 461, 466 (Douglas, Brennan, and Marshall JJ, dissenting).
102. Justice Douglas reprovingly reminded the Court of two canons of construction
concerning Indian affairs, both of which were disregarded or misused in the Courts
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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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approaches to judicial review of Indian child custody matters. Fisher, part

of the developing jurisprudence prior to ICWA, adopted the Williams-
McClanahan construct. In these cases, the courts readily recognized that
tribes, through an array of tribal laws and customary practices, exercised
jurisdiction, exclusive of state court, over essential relations with children
and families, particularly those who resided on the reservation. The general
rule proscribing state interference with essential tribal relations operated
the strongest, and tribes prevailed most consistently, where the parties were
domiciled or the child custody matter arose on the reservation.120
When tribes and states assert similar but competing interests over
child custody proceedings, such as in DeCoteau, jurisdictional lines blur
and the jurisprudential principles in the Williams-McClanahan and
Mescalero constructs collide. On the one hand, off the reservation, an
Indian person has the same rights and is subject to the jurisdiction of state
courts and the states domestic relations laws to the same extent as non-
Indian citizens.121 On the other hand, state and federal courts have guarded
tribal authority in internal tribal matters, especially in matters involving
essential tribal relations.122 The lingering question, posed initially in
Wisconsin Potowatomies, persists: at what point does tribal sovereignty
over essential tribal relations in child welfare matters give way to state
authority when an Indian child is removed from or not present on the
reservation? Furthermore, what factors, or constellation of factors,
illuminate this inquiry under modern legislative and judicial precepts of
tribal sovereignty? Looming in the background of these jurisdictional
conundrums, however, was a child welfare crisis in Indian country of
momentous proportions. At stake was no less than the cultural survival of
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).
KUNESH. FINAL 1/4/2008 2:36:33 PM
Indian tribes, as revealed in the congressional hearings on the ICWA.123
II. ESTABLISHING STATUTORY GROUNDS
A. The Legislative History of ICWAs Tribal Ward Provision

Abusive and discriminatory Indian child welfare practices were
common and pervasive long before 1974, when Congress launched its
formal investigations into the alarming reports concerning [t]he wholesale
removal of Indian children from their homes[,] . . . perhaps the most tragic
aspect of Indian life today.124 Congress heard extensive testimony about
the complicit role of state governments in creating the untenable conditions
of this crisis,125 and the egregious lack of requirements for responsible
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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tribal authorities to be consulted about or even informed of child removal

actions by nontribal government or private agents.126 Arbitrary acts of
government agents left Indian people feeling powerless in the face of the
imposing authority of state officials.127 In addition, while the persistent
poverty in Indian communities plainly amplified the strain on Indian
families, congressional testimony showed that in many situations the
childs removal could have been prevented by providing a modicum of
remedial services to Indian families,128 through trained social workers who
had some basic understanding of the diverse social and cultural norms in
Indian communities.129 The exclusion of tribes in the custody decision-
making process triggered extensive criticism about the lack of respect for
tribal jurisdictional prerogatives, leading to the final consensus that tribes,
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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as sovereign governmental units, must have final decision making

powers in areas as basic as child welfare.130
After several years of oversight hearings and testimony from
hundreds of witnesses, Senator James Abourezk of South Dakota, a state
with a significant Indian population that suffered a disproportionately high
rate of Indian children in foster care,131 introduced S. 1214, the Indian
Child Welfare Act of 1977.132 This Act proposed defined statutory rights
and protections for Indian tribes and families, with the fundamental goals
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.
KUNESH. FINAL 1/4/2008 2:36:33 PM
of stemming the outward migration of Indian children from their families

and strengthening the capacity of tribes to become involved in and,
wherever possible, be in control of decisions concerning the welfare of
Indian children.
During the hearings, Congress commissioned a Task Force of the
American Indian Policy Review Commission (AIPRC) to independently
study the specific problems of Indian child welfare.133 The AIPRCs Report
set out a historical and legal analysis of the crucial place which the issue
of child custody holds in the framework of tribal self-determination.134
Jurisdiction over child custody proceedings featured an important part of
this analysis. Critical of the Supreme Courts decision in DeCoteau v.
District Court, the Report noted that tribal interests in child welfare matters
cannot be as a practical matter any less than where geography assures
jurisdiction.135 This expansive view of tribal interests and authority also
was influenced by the tremendous impact of social mobility in modern
tribal communities. Recognizing that Indian families frequently left their
tribal communities out of necessity to live in border communities or
even . . . distant communities, depending on employment and educational
opportunities,136 the AIPRC Report concluded that where family ties to
the reservation are strong, but the child is temporarily off the reservation, a
fairly strong legal argument can be made for tribal court jurisdiction.137
Family ties necessarily involve essential tribal relations such as child
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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rearing which is the basis for maintaining tribal identity.138

These important legal and social considerations formed the Reports
recommendation to Congress to adopt a jurisdictional construct based on
the tribal status of the individual rather than on mere geography of the child
and [one that] recognizes that the tribal relationship is one of parens
patriae to all its minor tribal members.139 Congress accepted most of these
recommendations and envisioned a division of jurisdiction between states
and tribes based on declarative . . . law as developed by judicial
decisions140 where tribes would exercise exclusive jurisdiction over child
custody proceedings arising on the reservation and states would return
jurisdiction over child placement decisions to tribes, including tribes
whose reservations have been disestablished or diminished by virtue of
Federal law, or who are otherwise under State jurisdiction.141
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)
KUNESH. FINAL 1/4/2008 2:36:33 PM
As initially proposed the jurisdictional provisions of S. 1214,

contained in Section 102,142 conditioned tribal authority over child custody
matters on the existence of a formal tribal court system and would have
given the state a significant role in Indian child custody proceedings arising
on a reservation without a formal judicial system. Under Section 102(a),
exclusive tribal jurisdiction over child custody proceedings involving
Indian children residing on an Indian reservation was only vested in tribes
with an operating tribal court system.143 For tribes without a formal tribal
court, Section 102(b) anticipated that state courts would adjudicate
reservation-based Indian child custody matters, with the respective
jurisdictional responsibilities of the tribe and the state to be set out in a
state-tribal agreement.144 State courts also would have jurisdiction over
Indian children residing off the reservation, but Section 102(c) required
state courts to transfer the matter to a tribal court unless good cause for
refusal was established.145
Importantly, the proposed jurisdictional framework specifically
recognized tribal authority over Indian children beyond the reservation
borders. As provided in Section 102(a), [t]emporary removals [of Indian
children] beyond the boundaries of a reservation shall not affect the
exclusive jurisdiction of the tribal court over the placement of an Indian
child.146 In the event of a temporary placement or removal outside the
reservation, Section 102(d) required that the tribe and the childs parents be
immediately notified and a temporary custody hearing be held within strict
timelines in a court of competent jurisdiction.147 Section 103(d)
addressed placement decisions of tribal courts, and provided:
(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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Where an Indian child is placed in a foster or adoptive home, or

in an institution, outside the reservation of which the child is a
resident or with which he maintains significant contacts,
pursuant to an order of a tribal court, the tribal court shall retain
continuing jurisdiction over such child until the child attains the
age of eighteen.148
This provision generally followed the AIPRCs policy
recommendations, based on existing law which excludes Indians within
federally recognized reservations from the application of State laws.149
Several significant changes to this jurisdictional scheme were made
during legislative process. For one, the existence of a formal judicial
system as a condition of exercising tribal jurisdiction was removed in the
final version of the bill and replaced with a broad and encompassing
definition of tribal court that included 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.150 As a result, irrespective of the status of the tribes judicial
system, child custody matters arising on a reservation would be subject to
exclusive tribal jurisdiction. In conjunction with this change, the final
version distinguished jurisdictional prerogatives based on where the action
arose, either on or off the reservation, allocating jurisdiction between the
tribe and state accordingly. Therefore, proceedings arising off the
reservation would be subject to state jurisdiction, with the presumption that
the state court would transfer jurisdiction to the tribal court in the absence
of good cause to the contrary. The state had no authority over reservation-
based matters except where expressly vested with jurisdiction by other
federal law, such as Public Law 280. The final version also retained the
important exception to state jurisdiction for Indian children who were
deemed wards of the tribal court. In these situations, tribes would retain
exclusive jurisdiction, notwithstanding the childs domicile.151
The proposed legislation gave a modicum of hope to tribes whose
reservations had been judicially diminished or disestablished. As originally
drafted, the definition of reservation referred to the Indian country
statute152 and expressly included:
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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[L]ands within former reservations where the tribes still maintain

a tribal government, and lands held by Alaska Native villages
under the provisions of the Alaska Native Claims Settlement Act
(85 Stat. 688). In a case where it has been judicially determined
that a reservation has been diminished, the term reservation
shall include lands within the last recognized boundaries of such
diminished reservation prior to enactment of the allotment or
pending statute which caused such diminishment.153
Congress clearly was sympathetic to the jurisdictional problems
wrought by the Supreme Courts judicial disestablishment of the
boundaries of the Lake Traverse Reservation of the Sisseton Wahpeton
Tribe in DeCoteau v. District Court.154 The 1978 House Report recited
Cheryl DeCoteaus story as the rationale for including specific procedural
due process requirements in the bill:
In a recent South Dakota entrapment case, an Indian parent in a
time of trouble was persuaded to sign a waiver granting
temporary custody to the State, only to find that this is now being
advanced as evidence of neglect and grounds for the permanent
termination of parental rights. It is an unfortunate fact of life for
many Indian parents that the primary service agency to which
they must turn for financial help also exercises police powers
over their family life and is, most frequently, the agency that
initiates custody proceedings.155
Understanding full well that the Courts determination in DeCoteau
radically altered not only the tribes geographical borders, but also
seriously damaged its authority over all manner of issues, civil, criminal,
and regulatory, particularly its authority to safeguard the welfare of
children and families, a sine qua non to the preservation of its identity,156
the House Report candidly explained that the proposed definition was
intended to var[y] the holding in cases such as DeCoteau v. District Court
and Rosebud v. Kneip,157 but in a limited fashionto only Indian child
custody proceedings within the original boundaries of the diminished
reservations. The importance of limiting the application of the proposed
153. Senate Report, supra note 1, at 2.

154. See 420 U.S. 425, 427-28 (1976); supra notes 98-109 and accompanying text.
155. House Report, supra note 1, at 7533.
156. Wisconsin Potowatomies Band of Hannahville Indian Community v. Houston, 393
F. Supp. 719, 730 (W.D. Mich 1973).
157. House Report, supra note 1, at 7543 (citing DeCoteau, 420 U.S. 425, and Rosebud
Sioux Tribe v. Kneip, 430 U.S. 584 (1977) (finding clear intent by Congress to disestablish
the reservation borders)).
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definition of reservation to child custody proceedings was evident from

the DeCoteau decision itself, which consolidated two cases, one involving
Cheryl DeCoteaus child custody matter, and the other involving several
criminal convictions that had occurred in the ceded part of the Lake
Traverse Reservation.158 Although Congress merely intended to restore
tribal adjudicatory jurisdiction over child welfare matters arising in those
former reservation territories, the proposed language of the bill engendered
concerns that those geographical boundaries would somehow be re-
established.
The Senate likewise intended the definition of reservation to
maintain tribal jurisdiction in the diminished areas of former reservations
for child welfare purposes. In a colloquy on the Senate floor, Senator
Abourezk, responding to a question from Senator Hatfield about the
territorial scope of the proposed definition, explained:
The intent of this provision is not to expand the present federally
recognized boundary of a tribe but simply to authorize those
tribes whose reservations have already been diminished or
disestablished by judicial determination, to exercise jurisdiction
over the placement of Indian children within their former, or last
recognized reservation boundary. That is, as recognized prior to
such judicial determination.159
Satisfied with this clarification, the Senate approved this jurisdictional
scheme and definitions on November 4, 1977. When the House took up
H.R. 12533 the following year, however, it revisited the definition of
reservation. This review was triggered by Patricia M. Wald, Assistant
Attorney General in the Department of Justice, who set out her concerns in
a letter to Representative Udall in which she conveyed her concern that the
proposed definition of reservation would effectively reestablish the
diminished or disestablished boundaries of Indian reservations for the
limited purpose of tribal jurisdiction over Indian child placements.160 Such
158. See DeCoteau, 420 U.S. at 426.

159. 123 CONG. REC. 37226 (Nov. 4, 1977). Senator Hatfield was particularly interested
in the effect of the term former in the definition of reservation on two reservations in his
home state of Oregon. One was the Confederated Bands of the Umatilla Reservation, which
had recovered a small amount of the tribes former substantial landholdings which had been
lost through the allotment and surplus land process. The other was the Confederated Tribes
of the Siletz Reservation, whose tribal status was terminated and reservation disestablished
by the federal government in 1955, and then later restored in November of 1977. Senator
Abourezk explained that the terms of the proposed legislation did not authorize[] original
jurisdiction over their former reservation boundaries. Id.
160. Letter from Patricia M. Wald, Assistant Attorney General to Honorable Morris K.
Udall, Chairman, Committee on Interior and Insular Affairs, House of Representatives (May
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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.
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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offered an amendment from the floor to eliminate the reference to

diminished or disestablished reservations, substituting language providing
for tribal jurisdiction within diminished reservations to extend only over
lands held in trust or subject to a restriction against alienation by the United
States for the benefit of an Indian tribe or individual.163 The House readily
agreed to this and other amendments offered by Rep. Lagomarsino,164
which were swiftly accepted by the Senate. The Indian Child Welfare Act
of 1978 was signed into law on Nov. 8, 1978.
The jurisdictional scheme of the Indian Child Welfare Act of 1978,
unchanged in its thirty-year history, provides:
(a) Exclusive jurisdiction
An Indian tribe shall have jurisdiction exclusive as to any State

over any child custody proceeding involving an Indian child who
resides or is domiciled within the reservation of such tribe,
except where such jurisdiction is otherwise vested in the State by
existing Federal law. Where an Indian child is a ward of a tribal
court, the Indian tribe shall retain exclusive jurisdiction,
notwithstanding the residence or domicile of the child.
(b) Transfer of proceedings; declination by tribal court
In any State court proceeding for the foster care placement of, or
termination of parental rights to, an Indian child not domiciled or
residing within the reservation of the Indian 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.
(c) State court proceedings; intervention
In any State court proceeding for the foster care placement of, or
termination of parental rights to, an Indian child, the Indian
custodian of the child and the Indian childs tribe shall have a
right to intervene at any point in the proceeding.
163. Id. at 38108.

164. Rep. Udall later added that the amendments proposed by Rep. Lagomarsino are
satisfactory to me. Id. at 38109.
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(d) Full faith and credit to public acts, records, and judicial
proceedings of Indian Tribes
The United States, every state, every territory or possession of

the United States, and every Indian tribe shall give full faith and
credit to the public acts, records, and judicial proceedings of any
Indian tribe applicable to Indian child custody proceedings to the
same extent that such entities give full faith and credit to the
public acts, records, and judicial proceedings of any other
entity.165
B. Meta-Jurisdictional Concepts of Ward Provision

Three distinct meta-jurisdictional concepts emerge from this
judicially-based statutory design and its legislative history. The first is the
fundamentality of tribal sovereignty in Indian child welfare matters,
derived from Williams v. Lee,166 and honed in Wakefield v. Little Light,
that there can be no greater threat to essential tribal relations, and no
greater infringement on the rights of the tribe[s] to govern themselves than
to interfere with tribal control over the custody of their children,167 and
Wisconsin Potowatomies, which defined these interests as the sine qua
non to the preservation of [tribal] identity.168 The fundamentality concept
finds its statutory base in ICWAs congressional findings that recognize the
essence of these interests, that there is no resource that is more vital to the
continued existence and integrity of Indian tribes than their children,169
and in Congresss intentions that through ICWA, tribes, as sovereign
governmental units . . . have final decision making powers in areas as basic
as child welfare.170
The second meta-jurisdictional concept, a logical extension of the
first, is the propriety of tribal forums to decide these matters, and the
deference owed to their decisions and orders by non-tribal courts. ICWA
embraces this concept in two important ways, by broadly defining tribal
court and by requiring that full faith and credit be given to decisions of
165. 25 U.S.C. 1911(a)-(d) (2000).

166. See 358 U.S. 217 (1959).
167. 347 A.2d 228, 237-38 (Md. 1975) (citing Williams, 358 U.S. at 219-20); see also
supra note 10 and accompanying text.
168. Wisconsin Potowatomies of Hannahville Indian Community v. Houston, 393 F.
Supp. 719, 730; see also supra notes 41, 156 and accompanying text.
169. 25 U.S.C. 1901(3) (2000); see also In re Buehl, 555 P.2d 1334, 1342-43; supra
notes 62-74 and accompanying text.
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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
171. 358 U.S. 217, 220, 222 (1958).

172. 393 F. Supp. at 730, 734.
173. Serious funding problems with court and family services detract from tribes ability
to adequately handle child welfare matters. See House Report, supra note 1, at 7533-34 for a
discussion of these debilitating economic and social issues.
174. See Senate Report, supra note 1, at 12 ([A]t this time many State officials are not
honoring the tribes [sic] right to act exclusively.).
175. 25 U.S.C. 1903(12) (2000).
176. 25 U.S.C. 1911(d) (2000). Predictably, state courts have sidestepped this mandate
by refusing to transfer Indian child custody cases to tribal courts, and through a judicially
created existing Indian family exception to ICWA. See infra note 227 for discussion of
this exception.
178. See Donna J. Goldsmith, Individual vs. Collective Rights: The Indian Child
Welfare Act, 13 HARV. WOMENS L. J. 1, 8 (1990) (The ever elusive line delineating what
constitutes a right or interest can be drawn only after considering the particular situations
cultural circumstances.); Dussias, supra note 15, at 54 ([T]he Supreme Court does not
view tribal court civil jurisdiction as being determined solely on the basis of geography.).
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economies and pressures of societal mobility, which compel many Indian

families to find their livelihoods beyond reservation borders.179 The
distinctiveness of these tribal interests and the realities of shifting tribal
communities are embedded in ICWAs dual jurisdictional scheme, which
defines the transcendency of tribal jurisdiction in the provision conferring
presumptive tribal court jurisdiction over Indian children who reside or are
domiciled off the reservation,180 and vests exclusive tribal jurisdiction over
wards of a tribal court notwithstanding the residence or domicile of the
child.181
ICWAs wardship provision clearly implicates both the nature and
character of the tribes interests and its territorial authority. ICWAs
legislative history, however, offers scant insight into Congresss intent
about how this provision is to be applied except for a brief statement made
in the context of defining domicile: [subsection 1911(a)] further provides
that the domicile of an Indian child who is the ward of a tribal court is
deemed to be that of the court, which is generally in accord with existing
law.182 The summative body of existing law on tribal wardship
determinations prior to ICWA, examined in Part I of this Article,
demonstrates the complex interplay between the Williams-McClanahan
construct, decidedly supportive of tribal jurisdiction over essential tribal
relations and the tribes broad parens patriae interests,183 and the
Mescalero construct, firmly protective of traditional state court sovereignty
outside the reservation.
Several references in the congressional hearings suggest a contextual
understanding of the tribal jurisdiction as being one of a continuing
nature.184 For example, one reference considered the procedural effect of an
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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existing tribal court order on a subsequent state court proceeding:

Where an Indian child is placed in a foster or adoptive home, or
in an institution, outside the reservation of which the child is a
resident . . . pursuant to an order of a tribal court, the tribal court
shall retain continuing jurisdiction over such child until the child
attains the age of eighteen.185
This reference correlates tribal jurisdiction with a prior or pending
tribal action, and possibly operates as a limitation on tribal wardship
jurisdiction to proceedings otherwise within the tribes exclusive
jurisdiction, those based on the childs domicile or residence. Such
reasoning, however, would render meaningless the full extent of the
provisions applicability notwithstanding the residence or domicile of the
child.186 With existing law as the backdrop, an interpretation more in
concert with judicial discourse and legislative intent is one that recognizes
tribal jurisdiction beyond territorial borders in situations involving essential
tribal relations and the fundamental sovereign power to protect interests
vital to the tribes cultural and social welfare.
III. DEFINING THE TRANSFORMATION POINT
A. Pointing to Tribal Law

Long before any formal pronouncements from the federal oversight
hearings or congressional directives, Indian tribes safeguarded the welfare
of their children through tribal traditions and customary laws187 and over
the course of time, through their judicial systems with formal laws and
procedures.188 Tribal influence reached far beyond the reservation,
supra note 1, at 60, 107-08, 130.

185. See Senate Report, supra note 1, at 6 (emphasis added). Another reference remarked
on the transitory nature of foster care placements. Temporary removals beyond the
boundaries of a reservation shall not affect the exclusive jurisdiction of the tribal court over
the placement of an Indian child. Id. at 4 (emphasis added).
186. 25 U.S.C. 1911(a). As finally enacted, ICWAs wardship provision incorporates
both of these concepts: 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.
Id.
187. See Patrice H. Kunesh, Banishment as Cultural Justice in Contemporary Tribal
Legal Systems, 37 N.M. L. REV. 85, 95 (2007) (discussing customary sanctions such as
banishment for disobedience of the tribes social order).
188. See, e.g., Blackfeet Tribal Law and Order Code ch.7 2, 4, 7(c)-(f) (1999),
available at http://www.narf.org/nill/Codes/blackfeetcode/blftcodetoc.htm;
Sisseton-Wahpeton Tribal Code, available at
http://www.narf.org/nill/Codes/sissetonwahpeton%20code/tableofcontents.htm.
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particularly as Indian societies became more mobile and families

maintained cultural connections both on and off the reservation.189 The
tensions between tribes and states over Indian child custody determinations
discussed in Part I were not necessarily alleviated by ICWAs jurisdictional
scheme. Its enactment may actually have fomented further discord since
tribes now had the statutory basis and Supreme Court precedents for
pressing their rights in state and federal courts,190 as was seen in one of the
most significant cases construing ICWAs wardship provision decided soon
after the Act was passed.
In the case In re D.L.L.,191 parents from the Lower Brule Sioux Tribe
in South Dakota sought a temporary guardianship arrangement for their
four children with a director of a foster home located off the Lower Brule
Reservation. The placement was necessitated by the fathers illness and an
anticipated long convalescence. The foster home director requested formal
approval of the placement by the tribal court in order to obtain financial
assistance from the Bureau of Indian Affairs for the childrens support.192
The Lower Brule Tribal Court approved the placement and
maintained an oversight role in the foster care arrangements.193 Following
several disagreements between the foster home director and childrens
parents, the Tribal Court ordered the two older children to be returned to
their parents home on the Lower Brule Reservation.194 The foster home
director refused to obey the Tribal Court order and instead filed a
guardianship petition in South Dakota state court claiming that the parents
had abandoned their parental responsibilities. Although the state trial court
dismissed the directors action based on existing case law and the Indian
Child Welfare Act of 1978,195 the South Dakota Supreme Court found
some merits in the directors arguments that ICWA violated both the
federal and state constitutions.196 Recognizing the inherent conflict between
a long line of United States Supreme Court cases . . . hold[ing] that states
The Constitution is also available online at http://www.narf.org/nill/Constitutions/swconst/

swconst.htm.
189. See supra notes 136 and 179 for discussion of the social mobility of tribal
communities.
190. See, e.g., Fisher v. Dist. Court, 424 U.S. 382 (1976); supra text accompanying note
77.
191. 291 N.W.2d 278 (S.D. 1980).
192. Id. at 280.
193. Id.
194. Id.
195. Id.
196. See id.
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have exclusive jurisdiction in domestic relations cases[,]197 and a host of

Supreme Court decisions recognizing federal authority over Indian
matters and proscribing state infringement on essential tribal relations,198
the South Dakota Supreme Court nonetheless refused to set aside
Congresss deep-seated plenary power to legislate with respect to Indians
as long as [its] legislative power is not exercised arbitrarily.199 Finding no
such evidence and concluding that Congresss enactment of ICWA violated
neither the Tenth Amendment of the Federal Constitution nor the reserved
powers provision of the South Dakota Constitution,200 the court turned to
the directors arguments that the Tribal Courts authority was territorially-
constrained. In doing so, it re-engaged the Williams-McClanahan and
Mescalero constructs developed in the pre-ICWA decisions.
The real issue, according to the court, was not the narrowly defined
question of whether the state has jurisdiction under its Constitution
whenever an Indian is off the reservation,201 but rather the more broadly
encompassing question of whether the actions of the state would infringe
on the right of the reservation Indians to make and be governed by their
own laws within their own courts.202 With the issue thus properly framed,
the court readily acknowledged that tribes possess extraterritorial authority
to regulate a tribal members relationship with the tribe.203 Therefore, the
childrens presence off the reservation was not determinative of the proper
[jurisdictional] forum,204 since [e]ven when a tribal member is off the
reservation, tribal courts provide the appropriate forum for settlement of
disputes over personal and property interests of Indians that arise out of
tribal relations.205
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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Following the Supreme Courts direction in Williams v. Lee

preserving tribal self-government in essential tribal relations,206 the South
Dakota Supreme Court determined that the case required a broader
construct, one hinging on whether the matter demands exercise of the
tribes responsibility of self-government.207 This construct considered
factors such as ICWAs jurisdictional provisions, the timing of the tribal
court action, and the specific language of the tribal court order; all of which
collectively and conclusively established the tribal courts exclusive
authority to determine the childrens custody.
Addressing the temporal aspect first, the South Dakota Supreme
Court concluded that the children were wards of the Tribal Court prior to
the state court action.208 As for the wording of the court order, which
lacked specificity regarding the childrens ward status, the court concluded
that the words ward of the court [are not specifically required] in order
to effectuate such a status,209 finding that the tribal courts jurisdiction
over the guardianship action was tantamount to establishing the childrens
wardship status. It was sufficiently clear from the tribal courts order that
[t]he person to whom the order is referenced is a ward of the court.210 In
addition, since its orders were not final when issued, and could be
changed at an unspecified time in the future,211 it was readily apparent that
the tribal court intended to maintain an ongoing legal interest in the
childrens placement arrangement. The South Dakota Supreme Courts
final inquiry concerned the childrens domicile, which the court determined
had remained with their parents on the Lower Brule Sioux Reservation and
was not lost through their temporary placement and residency off the
Reservation.212
The South Dakota Supreme Courts decision in In re D.L.L.
established a new paradigm of tribal wardship jurisdiction. Its broad
construction of ICWAs jurisdictional mandates and pragmatic view of the
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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tribal courts actions on behalf of the childrens care and custody

substantiated the Lower Brule Tribal Courts exclusive jurisdiction over the
childrens custody.213
A few years later the Alaska Supreme Court employed a similar
analysis in reviewing a placement decision of an Alaskan Native Village
Council. In the case of In re J.M.,214 the Village Council of the Village of
Kaltag assumed legal custody of J.M. after he had been medically
evacuated from the Village and his mother failed to pick him up after being
released from the hospital.215 When the Village Chief requested financial
assistance from the state Division of Family and Youth Services for J.M.s
foster placement, the Alaska Department of Health and Social Services
filed for temporary custody of J.M.216 The Village Council challenged the
states jurisdiction over J.M., contending that it had exclusive jurisdiction
under ICWAs wardship provision.217 The state trial court not only denied
the Village Councils motion to dismiss for lack of jurisdiction finding that
the the Chiefs actions waived the Villages rights and relinquished
custody [of J.M.] to the State of Alaska, it also estopped the Village from
claiming otherwise.218
The State pursued these arguments on appeal to the Alaska Supreme
Court, where it did not dispute the Village Councils exclusive jurisdiction
over J.M.s custody or J.M.s ward status under ICWA. Rather, the State
insisted that the Village Council had waived its jurisdiction by seeking state
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
219. Id. at 153.

220. Id. at 154-55. The court characterized the Village Chiefs letter to the State as a
personal recommendation, finding the only official Village Council document before the
court was an order assuming tribal custody of J.M. Id. at 155.
221. Id. at 155 (In enacting the ICWA, Congress expressed its clear preference for . . .
deferring to tribal judgment on matters concerning the custody of tribal children . . . .
(citing Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed. Reg. 67,584
(Nov. 26, 1979) (alteration in original))).
222. In re J.M., 718 P.2d at 155-56 (citing Wisconsin Potowatomies of Hannahville
Indian Community v. Houston, 393 F. Supp. 719, 734 (W.D. Mich. 1973); Wakefield v.
Little Light, 347 A.2d 228, 234 (Md. 1975)). Referring to the district courts holding that the
tribe had not waived its exclusive jurisdiction through the actions of the childrens paternal
uncle, a member of the Tribal Council who sought custody of the children, the Alaska
Supreme Court stated, [w]hile this pre-ICWA case is significant because Congress sought
to confirm its holding, the case also states a well-established principle that the waiver of
Indian rights should not be easily inferred. Id. at 156. See also discussion of cases, supra
Part I, and infra note 293.
223. Despite holding that the Village Council had exclusive authority over the child
custody proceeding, the Alaska Supreme Court refused to substantively address the
waivability of jurisdiction issue, stating simply that it would not infer such a waiver from
the Councils action and leaving open the possibility that the Village Council could have
waived its statutory right to exercise authority under ICWA. In addition, the court delineated
conditions under which such a waiver could be accomplished, specifying that a tribes
waiver of exclusive jurisdiction must be express, unequivocal and knowingly made in
writing, and noted several benefits of these requirements to both the state and the tribe. Id. at
156. The court also pointed to ICWAs section on tribal-state agreements, 25 U.S.C.
1919(a) (2000), as a possible means of allocating jurisdiction between tribes and states,
stating that the section does not purport to preclude the states exercise of jurisdiction
where a tribe has clearly expressed an intent to waive jurisdiction. Id. at 156 n.6.
There is some merit to the courts reference to the use of cooperative agreements for
jurisdictional allocation purposes. During congressional hearings on ICWA, small tribes and
tribes without judicial systems expressed concerns about lacking sufficient financial and
institutional resources to properly adjudicate child welfare matters. See supra note 173 and
accompanying text. The Act ultimately permitted tribes and states to allocate jurisdictional
and services responsibilities through tribal-state agreements on a case-by-case basis. See 25
U.S.C. 1919(a). However, an affirmative and voluntary allocation of jurisdiction, as well
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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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present case in which the purpose and intent of Congress cannot be

achieved thereby.235 The court reasoned that the mothers abandonment
at the earliest practical moment after childbirth236 severed any
relationship the child had to an Indian identity or an Indian family, thus
precluding ICWAs relevance.237
Concerned nonetheless with the important facial implications of
ICWA, the court proceeded to examine the tribal courts claim of exclusive
jurisdiction over T.R.M. pursuant to its wardship order.238 Without
consideration of the Tribes laws and customs, the court determined that
the Oglala Sioux Tribal Court had no authority over a child who was
never domiciled on the reservation, and was not residing on the
reservation at the time the tribal court exercised jurisdiction and entered the
wardship order.239 It then determined that the tribal court waived its right
to claim exclusive jurisdiction by failing to participate in the state court
habeas corpus proceedings, and thus was bound by the adverse adjudication
under the doctrine of res judicata.240 Because the tribal court lacked
jurisdiction over non-reservation children, the Indiana Supreme Court held
that the tribal court order was not entitled to be recognized or enforced
under ICWAs full faith and credit provision.241
Two years later, the Montana Supreme Court adopted a markedly
different approach to a tribal court wardship determination in an adoption
proceeding likewise crossing many jurisdictional boundaries. In the case of
In re M.R.D.B.,242 a full-blood White Mountain Apache mother living in
[United States Constitution Article I, Section 8] is sufficient to override

the significant State interest in . . . exercising State jurisdiction over
what is a traditionally State matter. It seems to us that the Federal
interest in the off-reservation context is so attenuated that [Ten]th
Amendment and general principles of federalism preclude the wholesale
invasion of State power . . . .
Id. at 303 n.1.
235. Id. at 303.
236. Id.
237. See id. at 303. Further influencing the courts holding was the mothers lack of a
reservation residence or domicile, see id. at 305, and, consequently, T.R.M.s as well. Id. at
306.
238. Id. at 304 (acknowledging that mothers and childs Indian status and the proceeding
fell within ICWAs jurisdictional ambit).
239. Id. at 306.
240. In re T.R.M., N.E.2d at 306-07 (noting, though, that the tribal court was not
precluded from asserting concurrent jurisdiction under 25 U.S.C. 1911(b)).
241. See id. at 306 (citing 25 U.S.C. 1911(d), and noting foreign judgments are
subject to collateral attack for lack of jurisdiction under state law) (citations omitted).
242. 787 P.2d 1219 (Mont. 1990). The mother herself was adopted and raised by non-
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Montana relinquished custody of her newborn daughter to adoptive parents

in Colorado.243 The mother withdrew her consent to the adoption shortly
thereafter, and then petitioned the White Mountain Apache Tribal Court to
accept jurisdiction over the care and custody of her daughter.244 The tribal
court accepted jurisdiction and issued an order with several conditions:
unless otherwise ordered by the Tribal Court, the care and custody of the
child would be with her natural mother. Tribal Social Services would
provide the court regular reports on the care of the child, and the court
would continue to review the case.245
Indeed, in the Colorado adoption proceedings, filed a year after the
childs placement, the adoptive parents alleged that the mother had
neglected and abandoned her child, which prompted the tribal court to first
evaluate the childs situation and then to issue an order providing that she
remain a ward of the court under the supervision of the Tribal Social
Services.246 Thereafter, the Colorado court recognized the order of the
White Mountain Apache Tribal Court pursuant to ICWAs full faith and
credit provision and dismissed the adoption proceeding.247 Despite the
tribal courts extensive involvement in the childs care and placement,248
the mother left the reservation and again placed the child with the adoptive
parents in Colorado.249 In the subsequent adoption proceedings, Montana
district court rejected the White Mountain Apache Tribes assertion of
exclusive jurisdiction pursuant to its wardship orders due to the childs off-
reservation domicile, finding that the state court had, at a minimum,
concurrent jurisdiction.250
By the time the case reached the Montana Supreme Court, Mississippi
Band of Choctaw Indians v. Holyfield251 had been decided, the only United
States Supreme Court decision to address ICWA. With ICWAs dual
congressional findings as a backdrop, the vital necessity of children to the
continued existence and integrity of Indian tribes, and the failure of state
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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governments to recognize the essential tribal relations of Indian

people,252 the Montana Supreme Court determined that M.R.D.B. had
become a ward of the White Mountain Apache Tribal Court upon its initial
order and had remained a ward of the tribal court through its subsequent
proceedings.253 Once again, the imprecise terms in the initial tribal court
order did not dissuade the Montana Supreme Court from determining that
the child had become a ward through the effect of the court action,
particularly since under Montana law, an infant becomes a ward of the
court when its parents submit themselves to the jurisdiction of the court.254
The tribal courts subsequent orders confirmed its intent to establish a
wardship status255 and to maintain exclusive and continual jurisdiction over
the childs care and custody, notwithstanding the residence or domicile of
the child.256
Of parallel importance to Montana Supreme Courts analysis, and its
conclusion that the White Mountain Apache Tribes exclusive jurisdiction
was established through its initial wardship determination, was the
substantive scope of the Tribes law.257 According to the White Mountain
Apache Tribes Juvenile Code,
42.1. The Juvenile Court shall have exclusive original
jurisdiction over proceedings in which the child is to be
adjudicated to be neglected, in need of supervision, or
delinquent, proceedings for the termination of parental rights,
and proceedings for the adoption of a child.
42.4. Jurisdiction obtained by the Juvenile Court shall be

retained by the Juvenile Court until a child becomes 18 years of
age, unless terminated prior thereto.258
Two particular aspects of this tribal law impressed the Montana
Supreme Court. For one, it did not define the tribal courts authority in
terms of the childs domicile, thus permitting it to assert jurisdiction over
non-reservation children, such as in the present case. For another, tribal law
252. In re M.R.D.B., 787 P.2d at 1222 (citing 25 U.S.C. 1901 (3)-(5));

see also Mississippi Band of Choctaw Indians, 490 U.S. at 33-34.
253. In re M.R.D.B., 787 P.2d at 1222-24.
254. Id. at 1222 (citations omitted).
255. Id. at 1222-23.
256. Id. at 1223.
257. Id. at 1223-24 (citing White Mountain Apache Tribal Juvenile Code). Other
provisions of the Tribal Juvenile Code were raised to challenge the tribal courts procedural
disposition of various hearings, but the Montana Supreme Court rejected those objections
finding that exclusive jurisdiction remained with the tribal court. Id. at 1224.
258. Id. at 1223 (quoting White Mountain Apache Tribal Juvenile Code).
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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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Brennan found that the childrens domicile remained on the reservation

notwithstanding their parents residency off the reservation. Explaining that
one can reside in one place but be domiciled in another,260 the Court
determined that ICWA required a federal law definition of domicile261
since a state law definition of the term would otherwise undermine ICWAs
purpose of preserving Indian families and tribal relations and its
jurisdictional deference to tribal courts.262
Writing for the dissent in Mississippi Band of Choctaw Indians,
Justice Stevens would have approached the decision much like the Indiana
Supreme Court and thus would have concluded that Congress did not
intend ICWA to apply to situations where Indian children had never lived
on a reservation and whose Indian parents were not reservation residents.263
In the dissents view, ICWAs legislative history, statement of purpose, and
the pre-ICWA tribal ward decisions264 supported the position that tribes had
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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doctrine exception,268 the court accepted the Councils declaration of the

childs ward status, acknowledged the Councils extensive involvement in
the familys custody arrangements,269 and thus concluded that the Council
had properly established its exclusive jurisdiction under ICWA.270 The
court also rejected arguments that the childs physical presence outside the
tribal community deprived the Council of authority over the adoption
proceeding. Relying on the Montana Supreme Courts decision in
M.R.D.B., the more compelling fact to the Louisiana Appeals Court was the
lack of a proceeding in any other forum at the time of the Councils
Resolution declaring the child to be a ward of the Council.271
The Tennessee Court of Appeals likewise gave general jurisdictional
effect to a wardship order. In Powell v. Crisp, the Court of Indian Offenses
of the Eastern Band of Cherokee Indians of Cherokee in North Carolina
(CIO) awarded custody of the children to their maternal grandparents,
specifically maintaining jurisdiction in the matter until such time as it is
no longer in the best interest of the minor children.272 Although the CIOs
order did not expressly refer to the children as wards of the court, the
Tennessee Court of Appeals determined that the CIO undoubtedly intended
that effect, finding its order retain[ing] jurisdiction over the custody of the
minor children sufficient to establish a wardship status and to vest
exclusive jurisdiction in the CIO over the children pursuant to ICWA.273
In a recent decision, the South Dakota Supreme Court refused to
apply a minimal contacts or significant connection test, the equivalent of
the existing Indian family exception, in an Indian child custody proceeding
stating, [a]dherence to [this] argument would not promote the purpose of
ICWA which bases jurisdiction on the childs relationship with the tribe
through residency, domicile, or as a ward of the tribal court.274 In In re
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.
KUNESH. FINAL 1/4/2008 2:36:33 PM
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.
B. Protecting Essential Tribal Relations Beyond Tribal Borders

The issue of tribal court jurisdiction under ICWAs wardship
provision has come full circle before the Supreme Court of South Dakota in
a case that has re-defined the parameters of tribal authority in child welfare
matters. In In re J.D.M.C.,294 the Sisseton-Wahpeton Oyate Tribal Court
(SWO) assumed jurisdiction over J.D.M.C., a member of the Sisseton-
Wahpeton Tribe, after the Tribes Child Protection Program filed an
emergency protective custody petition following the tragic death of her
289. In re Dakota, 712 N.W.2d at 593.

290. Id. at 593, 596-97.
291. Id. at 591-93 (citing 25 U.S.C. 1911(a) (2000); Neb. Rev. Stat. 43-1504(1)
(2004)).
292. In re Dakota, 712 N.W.2d at 591.
293. The Nebraska courts concerns about subject matter jurisdiction recollect the issues
concerning the waivability of exclusive tribal jurisdiction discussed in the J.M. and T.R.M.
decisions. In J.M., the Alaska Supreme Court refused to find an implied waiver of exclusive
tribal jurisdiction. See supra text accompanying notes 220-222. Conversely, in T.R.M., the
Indiana Supreme Court found that the tribal courts failure to participate in the state court
proceeding effectuated a waiver of its jurisdiction. See supra text accompanying note 240.
With no definitive decision or rationale on this issue, practitioners and courts alike should
be mindful of this important issue.
294. In re J.D.M.C., 739 N.W.2d 796 (S.D. 2007).
KUNESH. FINAL 1/4/2008 2:36:33 PM
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.
KUNESH. FINAL 1/4/2008 2:36:33 PM
supported the Tribal Courts authority to adjudicate the child custody

matter: J.D.M.C.s domicile with her mother on the Lake Traverse
Reservation,301 and the Tribes responsibility to provide child protection
services within its territory according to a Child Protection Services
Agreement (CPS Agreement) with the State of South Dakota Department
of Social Services, Division of Child Protection Services.302 Pursuant to the
CPS Agreement, which provided that [a]ll Child Protective Services
heretofore performed by the State will be performed by the [tribe] within
the territory of the Sisseton-Wahpeton Oyate to all eligible clients,303 the
Tribe provided child protection services to the tribal community, including
child abuse and neglect investigations to Indian children throughout the
Tribes original territory.304 The terms of the CPS Agreement led the SWO
to conclude that it was:
[B]oth a purchase of service agreement (the Oyate will provide
child protection services within areas that the State has a legal
responsibility to provide services to children and the State will
pay for the services) and a jurisdictional allocation agreement
under the Indian Child Welfare Act whereby the State and Oyate
have agreed that the Oyate will exercise jurisdiction over all
Indian children within the territorial boundaries of the Lake
Traverse reservation. This is the only reasonable interpretation of
this document that assures protection for Indian children on this
reservation.305
Following the SWOs motion to the state circuit court requesting its
order be given full faith and credit pursuant to ICWA, the court considered
the SWOs determination of jurisdiction, although the matter had been fully
litigated in SWO.306 The circuit court adopted the SWOs memorandum
opinion and found that it was entitled to recognition pursuant to ICWAs
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).
KUNESH. FINAL 1/4/2008 2:36:33 PM
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)).
KUNESH. FINAL 1/4/2008 2:36:33 PM
member of an Indian tribe may be outside the territorial boundaries of the

reservation, the tribal government may regulate the absent members affairs
involving questions of membership . . . and questions of domestic
relations.312 Moreover, tribal courts may also have jurisdiction to resolve
civil disputes involving nonmembers, including non-Indians when the civil
actions involve essential self-governance matters . . . where the exercise of
tribal authority is vital to the maintenance of tribal integrity and self-
determination.313 Thus tribal interests in child welfare matters cannot be,
as a practical matter, constrained by territorial boundaries.314
ICWAs very structure presumes that tribes are capable and
competent to adjudicate child custody matters in their own courts, and that
tribal justice systems are the most appropriate forums for resolving these
matters.315 While ICWAs procedural and substantive provisions are
directed at state court proceedings, its primary objective is aimed at
strengthening tribal authority over child welfare matters.316 Thus, ICWA
fortifies this authority statutorily by defining and expanding the
jurisdictional contours of tribal jurisdiction in three respects: by
recognizing exclusive tribal court jurisdiction over children who are
domiciled on the reservation, giving tribes a significant role in state court
proceedings, and granting exclusive tribal jurisdiction over a child who is a
ward of the tribal court notwithstanding the residence or domicile of the
child.317 ICWAs legislative history also reveals that its jurisdictional
framework was motivated by concerns over the failure of State officials,
agencies, and procedures to take into account the special problems and
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).
KUNESH. FINAL 1/4/2008 2:36:33 PM
circumstances of Indian families and the legitimate interest of the Indian

tribe in preserving and protecting the Indian family.318 Beyond this
profuse iteration of history, law, and policy, if ICWAs wardship provision
were possibly found unclear in any manner, the well-established canon of
statutory construction in federal Indian law directs that such ambiguity in a
statute enacted for the benefit of Indians or affecting their rights must be
resolved in their favor.319
The South Dakota Supreme Court followed none of these positions.
Instead, the majority adopted a very narrow approach, framing the issue
and employing an analysis similar to the Indiana Supreme Court in
T.R.M.,320 in terms of whether a tribal court may assert jurisdiction based
on off-reservation conduct over an Indian child and a non-Indian parent
domiciled and residing off the reservation.321 Finding that J.D.M.C.s
welfare was of no concern of the SWO under any law or agreementnot
under ICWA, the CPS Agreement, or tribal lawthe court stated, [t]he
tribal court could not be empowered to effectuate the status of a child as a
ward of the court relying on [ICWAs wardship provision] where the child
was never domiciled on the reservation, and was not residing on the
reservation at the time the tribal court exercised jurisdiction and entered the
wardship order.322 According to the South Dakota Supreme Court, [t]he
plain language of [ICWA] and the case law demonstrate the only effective
way a wardship order can be used to obtain exclusive jurisdiction is to enter
the order while the Indian child is domiciled or residing on the reservation
and before the proceeding commenced.323 In addition, tribal jurisdiction

319. See, e.g., South Dakota v. Yankton Sioux Tribe, 522 U.S. 329, 348 (1998) (noting
the standard canon of Indian law that [o]nce powers of tribal self-government or other
Indian rights are shown to exist, by treaty or otherwise, later federal action which might
arguably abridge them is construed narrowly in favor of retaining Indian rights); Bryan v.
Itasca County, 426 U.S. 373, 392 (1976) (We must be guided by the eminently sound and
vital canon . . . that statutes passed for the benefit of dependent Indian tribes are to be
liberally construed, doubtful expressions being resolved in favor of the Indians.) (internal
quotation marks, ellipses and citations omitted). See also Carpenter and Frickey, supra note
99 (discussing canons of statutory construction).
320. In re T.R.M., 525 N.E.2d 298, 306 (Ind. 1988); supra notes 228-241 and
accompanying text.
321. In re J.D.M.C., 739 N.W.2d 796, 813 (S.D. 2007).
322. Id. at 804 (citing In re T.R.M., 525 N.E.2d at 306).
323. Id. at 805 (emphasis added) (noting an exception to this rule for tribal jurisdiction
established under 25 U.S.C. 1919(a) (state/tribal agreements) or 25 U.S.C. 1911(b)
(transfers of jurisdiction from state to tribal court)). Id. at n.13. This conclusion is confusing
if not inconsistent with the Courts previous elucidation of the effect of tribal court orders in
child custody proceedings. See supra notes 208-211 and accompanying text (finding tribal
court jurisdiction in guardianship action tantamount to establishment of childs ward status).
KUNESH. FINAL 1/4/2008 2:36:33 PM
cannot be procedurally maneuvered by declaring J.D.M.C. a ward of the

tribal court after the proceedings began.324 This defensive use of ICWA,
without an otherwise valid pre-existing jurisdictional basis, thus precluded
the SWO from exercising authority over the childs welfare and custody.325
The majoritys opinion in J.D.M.C. hearkens back to Justice Douglas
dissent in DeCoteau, where he chastised his Courts disregard for the
Indian law canons of construction and its extraordinarily upending
conclusion that the Lake Traverse Reservation had been disestablished.326
His foreboding sense of uncertainty and confusion engendered by the
crazy quilt pattern327 of jurisdiction created by the majoritys decision
has come to fruition, as has his uncanny trepidation that the decisions
indifference to the preservation of family and community relations,
essential to cultural survival, would be the end of tribal authority for the
Sisseton Wahpeton Tribe.328
Justice Konenkamp, the lone dissenter in J.D.M.C., similarly reproved
his courts decision for not heeding a basic rule of lawthat the court is
bound to recognize the tribal courts determination of its own
jurisdiction.329 Having been fully and fairly litigated in the tribal court, the
issue of the SWOs jurisdiction thus was res judicata, and the majority was
precluded from examining the merits on appeal.330 The majority,
undoubtedly disconcerted by the absence of a transcript of the tribal court
hearing,331 jettisoned sound judicial procedure and dismissed the facts that
the father appeared specially in the tribal court to contest jurisdiction and at
no time raised any issue as to the completeness of the proceedings or due
process he received in the tribal court.332 The majoritys de novo review of
324. Id. at 805 (emphasis added).

325. Id. at 813 (reversing the circuit courts order, the court concluded, given the lack of
personal jurisdiction and the lack of evidence to support the tribal courts decision, it was
error for the circuit court to grant full faith and credit or comity to the tribal court order.).
326. DeCoteau v. Dist. County Court, 420 U.S. 425, 461 (1975) (Douglas, Brennan &
Marshall. JJ, dissenting); see also, supra notes 98-109 and accompanying text.
327. Id. at 466.
328. Id. at 467.
329. In re J.D.M.C., 739 N.W.2d at 814 (Konenkamp, J., dissenting).
330. Id. (explaining further that [w]hile a court may not have subject matter jurisdiction,
still it may have jurisdiction to determine the question whether it has jurisdiction over the
subject matter to bind the parties to its determination, with the result that thereafter they are
precluded from successfully contending that the court had no jurisdiction over the subject
matter. Id. at n.26 (citing Restatement (First) of Judgments 10 cmt. a (1942)).
331. Id. at 808-09. Indeed, as admitted by the majority, assuming a complete record on
[jurisdiction], Father could not collaterally attack the tribal court judgment in state court and
we could not examine whether or not there was . . . jurisdiction. Id.
332. Id. at 814-15.
KUNESH. FINAL 1/4/2008 2:36:33 PM
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
333. Id. at 809.

334. Id. at 814-15 (citing Underwriters Natl Assurance Co. v. N.C. Life and Accidental
and Health Insurance Guarantee Assn, 455 U.S. 691, 704-05 (1982)).
335. Justice Konenkamp noted in particular the tribal court judges thoughtfully written
decision and his impressive credentials as a tribal court judge, attorney and academic. In re
J.D.M.C., 739 N.W.2d at 814, n.27.
336. Statement of Sisseton Wahpeton Tribal Chairman Michael I. Selvage Sr., SOTA IYA
YE YAPI, Issue #38 (2007) (copy of statement on file with author and the New England Law
Review). Sota Iya Ye Yapi is an online newspaper published by Sisseton-Wahpeton Oyate
KUNESH. FINAL 1/4/2008 2:36:33 PM
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.
(People) of the Lake Traverse Reservation (Sisseton-Wahpeton Sioux Tribe). The

publication is available at http://earthskyweb.com/sota.html.
337. Perry Dane, The Maps of Sovereignty, 12 CARDOZO L. REV. 959, 978 (1991).

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BORDERS BEYOND BORDERS

16 NEW ENGLAND LAW REVIEW [Vol. 42:15

boundary line between state and tribal power, particularly as to Indian

[T]here can be no greater threat to essential tribal relations,

Because of poverty and discrimination Indian families face many

** Wakefield v. Little Light, 347 A.2d 228, 237-38 (Md. 1975).

2007] BORDERS BEYOND BORDERS 17

18 NEW ENGLAND LAW REVIEW [Vol. 42:15

reservation.6 A significant, yet often overlooked, facet of ICWAs

2007] BORDERS BEYOND BORDERS 19

11. Child-rearing is one such essential relation. See Wisconsin Potowatomies of

20 NEW ENGLAND LAW REVIEW [Vol. 42:15

notions of state court jurisdiction over family relations,16 and has

A. The Courage of Lelah-Puc-Ka-Chee and Little Light

2007] BORDERS BEYOND BORDERS 21

22 NEW ENGLAND LAW REVIEW [Vol. 42:15

and remove them to schools situated beyond the reservation,

B. The Williams-McClanahan Construct and Essential Tribal

2007] BORDERS BEYOND BORDERS 23

Michigan Department of Social Services took emergency custody of three

24 NEW ENGLAND LAW REVIEW [Vol. 42:15

2007] BORDERS BEYOND BORDERS 25

jurisdiction with the tribe.

The determination of permanent custody of the children,

[T]ribal custom existed, was followed in spirit and largely in practice

26 NEW ENGLAND LAW REVIEW [Vol. 42:15

2007] BORDERS BEYOND BORDERS 27

despite the states significant interests in the childs custody, as

tribes off-reservation activities in upholding states authority to tax).

28 NEW ENGLAND LAW REVIEW [Vol. 42:15

limited the Andersons guardianship of Daniel to a period of one year and

member of the nearby Shoshone Bannock Tribe. Id.

2007] BORDERS BEYOND BORDERS 29

Restatements rules of domicile in guardianship arrangements, the

available at http://www.narf.org/nill/Codes/blackfeetcode/blftcodetoc.htm) (alteration in

30 NEW ENGLAND LAW REVIEW [Vol. 42:15

E. The Juxtaposition of DeCoteau and Fisher

2007] BORDERS BEYOND BORDERS 31

redefine the term reservation in the proposed ICWA legislation. In Fisher

77. 424 U.S. 382 (1976) (per curiam).

32 NEW ENGLAND LAW REVIEW [Vol. 42:15

Throughout the state court proceedings, DeCoteau disputed the

2007] BORDERS BEYOND BORDERS 33

34 NEW ENGLAND LAW REVIEW [Vol. 42:15

The federal government continued to provide assistance and services to the

2007] BORDERS BEYOND BORDERS 35

Reservation, resulting in limited tribal jurisdiction over only the retained

98. DeCoteau, 420 U.S. at 445, 447.

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2007] BORDERS BEYOND BORDERS 37

38 NEW ENGLAND LAW REVIEW [Vol. 42:15

approaches to judicial review of Indian child custody matters. Fisher, part

2007] BORDERS BEYOND BORDERS 39

Indian tribes, as revealed in the congressional hearings on the ICWA.123

II. ESTABLISHING STATUTORY GROUNDS

A. The Legislative History of ICWAs Tribal Ward Provision

40 NEW ENGLAND LAW REVIEW [Vol. 42:15

tribal authorities to be consulted about or even informed of child removal

2007] BORDERS BEYOND BORDERS 41

as sovereign governmental units, must have final decision making

42 NEW ENGLAND LAW REVIEW [Vol. 42:15

of stemming the outward migration of Indian children from their families