3. Jurisdictional Provisions of the Icwa

• Library: The Indian Child Welfare Act Handbook: A Legal Guide to Custody and Adoption (ABA) (2018 Ed.)

The Supreme Court noted in Mississippi Band of Choctaw Indians v. Holyfield¹ that the jurisdictional provisions of the Indian Child Welfare Act (ICWA) are at the very heart of the law.² Those provisions are designed to maximize the opportunity for tribal court judges who, in most cases, are more knowledgeable than state court judges about Indian child-rearing traditions and customs, to determine the fate of Indian children.³ As a result, the ICWA recognizes that tribal courts have exclusive jurisdiction over child custody proceedings "when an Indian child resides or is domiciled within the jurisdiction of such tribe. . . . "⁴

When a child custody proceeding arises outside of the jurisdiction of a tribe (i.e., in a state court's jurisdiction), the ICWA provides that the proceeding shall be transferred to the tribal court absent declination by the tribal court, objection by a parent, or upon a showing of good cause to the contrary.⁵ This transfer jurisdiction of a tribal court was referred to by the Supreme Court as the tribal court's "presumptive" jurisdiction.⁶

The ICWA also allows states and tribes to enter into agreements allocating jurisdiction, which has engendered much positive development in the area of cooperative agreements between tribes and states.⁷

Exclusive Jurisdiction

The ICWA confirms that a tribal court exercises exclusive jurisdiction over any child custody proceeding involving an Indian child residing or domiciled within the reservation, except when jurisdiction is otherwise vested in the state under existing federal law.⁸ The tribal court also retains exclusive jurisdiction over any Indian child who remains a "ward" of the tribal court, notwithstanding the child's residence or domicile.⁹

The exclusive jurisdictional provisions of the ICWA apply to all Indian children within a tribal court's jurisdiction, regardless of whether a child who is the subject of a custody proceeding is a member of the tribe that is exercising jurisdiction, provided the exercise of jurisdiction is consistent with the particular tribe's organic laws.¹⁰ Although federal court decisions proscribe tribal criminal jurisdiction over nonmember Indians,¹¹ there is no similar prohibition against tribal jurisdiction in the civil context. In effect, Congress has expressly confirmed that Indian tribes have exclusive jurisdiction over all Indian children resident or domiciled on a reservation, much the same way Congress vested tribal courts with criminal jurisdiction over all Indians after the Duro v. Reina decision.¹²

The reference to an existing federal law exception in the exclusive jurisdiction section is nonspecific. Public Law 280 (P.L. 280) was enacted by Congress in the early 1950s to allow states to fill what Congress believed was a vacuum in the enforcement of misdemeanor criminal laws on Indian reservations.¹³ The law vested five states with mandatory civil and criminal jurisdiction over reservations in those states (Alaska became the sixth mandatory state when it was admitted to the Union in 1959) and permitted other states to unilaterally extend their jurisdiction over Indian country within their borders.¹⁴ Although P.L. 280 does not strip tribes of their inherent jurisdiction and right to exercise both civil and criminal jurisdiction, it did lead to a withdrawal of federal support for tribal justice systems in those states. This withdrawal was particularly acute in both Alaska and California. In both cases, many tribes simply do not have access to the resources available to tribes in other states for law enforcement or tribal courts, although this is changing.

In the civil context, the US Supreme Court has held that states and tribes in P.L. 280 states have concurrent civil jurisdiction over issues involving civil prohibitory conduct, while tribes maintain exclusive jurisdiction over civil regulatory conduct.¹⁵ Notwithstanding these cases, however, at least one federal court of appeals has held that states have concurrent jurisdiction over on-reservation child welfare cases.¹⁶ Another issue involves P.L. 280's intersection with the ICWA, particularly the provision in the ICWA requiring tribes subject to P.L. 280 to petition the Secretary of the Interior to "reassume jurisdiction" over the child welfare matters covered in the ICWA.¹⁷ However, courts have found that since P.L. 280 is not a divestiture statute, tribes continue to have inherent jurisdiction over their members, and that this provision of the ICWA refers to reassuming exclusive jurisdiction over on-reservation child welfare matters. As such, under the ICWA, state courts must grant full faith and credit to tribal court orders.¹⁸ Practitioners should acquaint themselves with the law of the state in which they work if that state is a P.L. 280 state.

Domicile on Reservation

If an Indian child is domiciled¹⁹ on or resides²⁰ on an Indian reservation, the tribal court, with a few exceptions, has exclusive jurisdiction over a child custody proceeding involving that child.²¹ The only exceptions to this rule are P.L. 280, discussed supra, and a section in the ICWA that gives state officials and courts the authority to remove an Indian child temporarily and place him or her in an emergency foster home in a situation where the child is temporarily off the reservation.²² In that circumstance, the state must immediately notify tribal officials so that they may take appropriate action.²³ The definition of "reservation" under the ICWA is a broad one.²⁴ The definition refers to a criminal statute, the Major Crimes Act, which broadly defines "Indian country" as: (a) any territory located within the exterior boundaries of an Indian reservation, including fee-owned land; (b) any dependent Indian community; and (c) any Indian allotment and the rights of way running through them.²⁵ There are hundreds of law review articles, treatises, and cases discussing what constitute "Indian country" under the Major Crimes Act.²⁶ This handbook cannot possibly detail every nuance and interpretation of this definition. In brief, there are certain reservations in this country that have been diminished or disestablished.²⁷ This means that these reservations have lost part of their land base because of certain congressional enactments in which Congress purchased surplus lands for non-Indians to homestead out of the original land set aside for tribes by treaty or congressional enactment.²⁸ Some may not even have exterior boundaries defining their reservation.²⁹

Certain Indian communities located on land held in trust for the tribe or individual Indians are still located in those areas that were taken from the tribes by congressional enactment.³⁰ These communities are called dependent Indian communities because they retain much similarity to the communities located within the exterior boundaries of the reservation. Other lands, called allotments, were parceled out to individual Indians by Congress out of the original tribally-owned land base in an effort to break up reservations and assimilate Indians into the dominant white society.³¹ Many of these allotments are located outside of the exterior boundaries of reservations but are nonetheless considered part of Indian country for jurisdictional purposes. The best way to determine whether a particular area is Indian country is to confer with the US Department of the Interior or individual tribes about the status of the land ownership in the area.³²

Other reservations retain their land base as set out in the individual treaty or congressional enactment setting up that reservation.³³ For those reservations, any land that lies within the exterior boundaries of the reservation is Indian country, even if the land is held by non-Indians in fee simple.³⁴

In Holyfield, the US Supreme Court dealt with the definition of "domicile" contained in the exclusive jurisdiction provisions of the ICWA.³⁵ In that case the Mississippi Supreme Court held that Indian twins born outside of the reservation borders to an Indian mother domiciled on the reservation were not "domiciled" on the reservation for purposes of the exclusive jurisdiction provisions of the ICWA.³⁶ The Supreme Court reversed this determination.³⁷ Holyfield held that a state court, in determining the domicile of an Indian child, should look to generally accepted federal and common-law concepts of domicile.³⁸ The court distinguished between residence and domicile in concluding that a person's domicile need not necessarily be his or her residence, especially with respect to minor children who usually assume the domicile of their natural parents.³⁹

Importantly, the Holyfield court noted that state courts should not interpret "domicile" in a manner that frustrates the congressional intent behind the enactment of the ICWA.⁴⁰ Therefore, because the ICWA expresses an intent to allow tribal courts to exercise exclusive jurisdiction over Indian children domiciled on the reservation, it would be violative of that intent to allow natural parents to circumvent a tribe's rights to exercise its jurisdiction by placing children off the reservation shortly after birth. The Supreme Court therefore adopted a broad definition of domicile, one that maximizes a tribal court's opportunity to exercise its authority in the ICWA cases.⁴¹

Holyfield teaches that a tribal court's jurisdiction is not preempted by a natural parent arranging to have a child off the reservation or by placing that child for adoption off reservation shortly after birth.⁴² Although some may criticize this principle as violative of the natural parents' rights to determine the destiny of their child, the issue is who decides the case, not what the decision is. Congress clearly weighed the tribe's interests in preserving tribal culture and values and its ability to make decisions that reflect the social and cultural values in the community where the parents are resident or domiciled against the rights of natural parents to dictate a particular placement...