TENNESSEE COMPILATION OF SELECTED LAWS ON CHILDREN, YOUTH AND FAMILIES, 2010 EDITION
UNITED STATES CODE SERVICE - TITLE 25 INDIANS
CHAPTER 21. INDIAN CHILD WELFARE
§ 1911. Indian tribe jurisdiction over Indian child custody proceedings
(a) Exclusive jurisdiction. An Indian tribe shall have jurisdiction exclusive as to any State over any child custody proceeding involving an Indian child who resides or is domiciled within the reservation of such tribe, except where such jurisdiction is otherwise vested in the State by existing Federal law. Where an Indian child is a ward of a tribal court, the Indian tribe shall retain exclusive jurisdiction, notwithstanding the residence or domicile of the child.
(b) Transfer of proceedings; declination by tribal court. In any State court proceeding for the foster care placement of, or termination of parental rights to, an Indian child not domiciled or residing within the reservation of the Indian child's tribe, the court, in the absence of good cause to the contrary, shall transfer such proceeding to the jurisdiction of the tribe, absent objection by either parent, upon the petition of either parent or the Indian custodian or the Indian child's tribe: Provided, that such transfer shall be subject to declination by the tribal court of such tribe.
(c) State court proceedings; intervention. In any State court proceeding for the foster care placement of, or termination of parental rights to, an Indian child, the Indian custodian of the child and the Indian child's tribe shall have a right to intervene at any point in the proceeding.
(d) Full faith and credit to public acts, records, and judicial proceedings of Indian tribes. The United States, every State, every territory or possession of the United States, and every Indian tribe shall give full faith and credit to the public acts, records, and judicial proceedings of any Indian tribe applicable to Indian child custody proceedings to the same extent that such entities give full faith and credit to the public acts, records, and judicial proceedings of any other entity.
(Nov. 8, 1978, P. L. 95-608, Title I, § 101, 92 Stat. 3071.)
RESEARCH REFERENCES
Cross References
This section is referred to in 25 USCS §§ 1914, 1918, 1923
Research Guide
Federal Procedure:
18 Moore's Federal Practice (Matthew Bender 3d ed.), ch 130, Recognition and Validity of Judgments § 130.07
19 Fed Proc L Ed, Indians and Indian Affairs §§ 46:469, 476, 478, 480, 484
Am Jur:
2 Am Jur 2d, Adoption § 112
25 Am Jur 2d, Domicil §§ 1, 3
41 Am Jur 2d, Indians; Native Americans §§ 118, 121-123, 136
24A Am Jur 2d, Divorce and Separation § 1073
Annotations:
Construction and Application of Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C.A. §§ 1901 et seq. [25 USCS §§ 1901 et seq.]) Upon Child Custody Determinations. 89 ALR5th 195
Texts:
1 Adoption Law and Practice (Matthew Bender), ch 3, Placing Children for Adoption § 3.07
1 Adoption Law and Practice (Matthew Bender), ch 4, Adoption Procedure §§ 4.02, 4.07
1 Adoption Law and Practice (Matthew Bender), ch 5, Independent Adoptions in California; Dual Representation Allowed § 5.12
1 Adoption Law and Practice (Matthew Bender), ch 6, Private-Placement Adoptions in New York; Separate Representation Required § 6.04
2 Adoption Law and Practice (Matthew Bender), ch 7, Attorney's Role in Private Agency Adoption § 7.04
2 Adoption Law and Practice (Matthew Bender), ch 11, Intercountry Adoption: Legal Requirements and Practical Considerations § 11.07
2 Adoption Law and Practice (Matthew Bender), ch 13, Aftermath of Adoption: Legal and Social Consequences § 13.02
2 Adoption Law and Practice (Matthew Bender), ch 15, Adoption of Native American Children §§ 15.01-15.03, 15.06
Cohen's Handbook of Federal Indian Law (Matthew Bender), ch 4, Indian Tribal Governments §§ 4.01, 4.04
Cohen's Handbook of Federal Indian Law (Matthew Bender), ch 6, Tribal/State Relationship § 6.04
Cohen's Handbook of Federal Indian Law (Matthew Bender), ch 7, Civil Jurisdiction § 7.07
Cohen's Handbook of Federal Indian Law (Matthew Bender), ch 11, Indian Child Welfare Act §§ 11.01-11.04
Law Review Articles:
Adams. The Indian Child Welfare Act of 1978: protecting tribal interests in a land of individual rights. 19 Am Indian L Rev 301, 1994
Metteer. Pigs in Heaven: a parable of Native American adoption under the Indian Child Welfare Act. 28 Ariz St L J 589, Summer 1996
Davies. Implementing the Indian Child Welfare Act. 16 Clearinghouse Rev 179, July 1982
Myers. The Indian Child Welfare Act. 83 Mich Bar J 19, July 2004
Trentadue; DeMontigny. The Indian Child Welfare Act of 1987: A Practitioner's Perspective. 62 ND L Rev 487, 1986
Snyder. An Overview of the Indian Child Welfare Act. 7 St Thomas L Rev 815, Summer 1995
CASE ANNOTATIONS
1. Generally
2. Exclusive jurisdiction
3. -Domicile or residence
4. Full faith and credit
1. Generally
Section 1911 of Indian Child Welfare Act (25 USCS § 1911) gave Native villages, which met legal test for sovereign tribes, and their individual residents private rights of action in federal court; however, Act did not provide any exclusive means for enforcing rights recognized by § 1911(d), and therefore, villages had private right of action under 42 USCS § 1983 for enforcement of federal right created by § 1911, which supports award of fees under § 1983. Native Village of Venetie IRA Council v Alaska (1998, CA9 Alaska) 155 F.3d 1150, 98 CDOS 7249, 98 Daily Journal DAR 10049
Distinction is made between adoptive placement and termination of parent rights, and only in latter case does § 1911 support intervention. In re J.R.S. (1984, Alaska) 690 P2d 10 (criticized in In re Desiree F. (2000, 5th Dist) 83 Cal App 4th 460, 99 Cal Rptr 2d 688, 2000 CDOS 7315, 2000 Daily Journal DAR 9659)
Trial court, in making its determination to deny transfer to tribal court, reasoned that expense and inconvenience that would be incurred by grandparents if matter were transferred outweighed other applicable guidelines; however, while there might be some inconvenience involved, appellate court could not say that hardship would be undue, and that while substitute parent might provide child with good care or even better care than its natural parent, that was not appropriate standard for determining best interests of child in context of Indian Child Welfare Act, 25 USCS §§ 1901-1963, transfer decision. In re Guardianship of J.C.D. (2004) 2004 SD 96, 686 NW2d 647
In termination of parental rights and adoption case, state supreme court found that (1) trial court did not lack jurisdiction to consider tribal central council's motion to intervene and invalidate adoption because substantial evidence supported inference that submitted ambiguous notice of voluntary dismissal under Nev. R. Civ. P. 41(a) only applied to mother or had no force and effect because it was filed after trial court addressed merits of case; (2) under Nev. R. Civ. P. 56(e), affidavit of tribal enrollment officer was admissible to establish that child was Native American child under 25 USCS § 1903(4) and subject to Indian Child Welfare Act (ICWA), 25 USCS §§ 1901-1963; (3) under 25 USCS § 1911, 1913, and 1914, ICWA provided tribe with independent standing to challenge voluntary adoption proceeding, which included termination of parental rights, apart from child's parents; and (5) adoptive father should have been given opportunity to rebut enrollment officer's affidavit that child was Native American; because adoptive father was not given opportunity to rebut tribal enrollment officer's affidavit, trial court's order vacating adoption was reversed and matter was remanded for further proceedings. Phillip A.C. v Central Council (In re Phillip A.C.) (2006, Nev) 149 P3d 51, 122 Nev Adv Rep 109
In termination of parental rights case, under 25 USCS § 1911(c), Native American child's tribe shall have right to intervene at any point in proceeding; furthermore, 25 USCS § 1903(1)(ii) defines termination of parental rights as any action resulting in termination of parent-child relationship, which means that adoption proceeding qualifies as such action because adoption effectively terminates parent-child relationship pursuant to Nev. Rev. Stat. § 127.160. Finally, mother's consent to adoption by stepfather included termination of parental rights; thus, pursuant to 25 USCS § 1914, tribal central council had standing to challenge state court adoption proceeding under ICWA. Phillip A.C. v Central Council (In re Phillip A.C.) (2006, Nev) 149 P3d 51, 122 Nev Adv Rep 109
Trial court erred in denying Cherokee Nation's motion to intervene in proceedings involving termination of parental rights of father to Indian child and placement for adoption of Indian child with mother's non-Indian family members, pursuant to 25 USCS § 1911(c), intervention was required. In re A.J.S. (2009, Kan) 204 P3d 543
Applying Neb. Rev. Stat. § 7-101, county court denied tribe's motion to intervene in child custody proceedings because attorney had not signed motion; however, county court's order was subject to reversal because tribe's right to intervene under 25 USCS § 1911(c) preempted Nebraska's laws regulating unauthorized practice of law. State v Jennifer M. (In re Elias L.) (2009) 277 Neb 1023, 767 NW2d 98
2. Exclusive jurisdiction
Native American parent's tribe did not have exclusive jurisdiction in child dependency proceedings because, inter alia, clear definition of child custody proceedings under Indian Child Welfare Act, 25 USCS § 1911(a), demonstrated that Congress intended Public Law 280 states to have jurisdiction over Indian child dependency proceedings. Doe v Mann (2005, CA9 Cal) 415 F.3d 1038
Indian mother's case for return of her children must be dismissed for lack of jurisdiction, where 5 children were taken from her custody by tribal social worker when she was arrested for assault and battery and adjudicated dependant by tribal judge and placed with maternal aunt and uncle, because 25 USCS § 1911(a) gives Indian tribes exclusive jurisdiction to determine custody of Indian children in child welfare situations such as proceeding that gave rise to this action. Sandman v Dakota (1992, WD Mich) 816 F Supp 448, affd without op (1993, CA6 Mich) 7 F.3d 234, reported in full (1993, CA6) 1993 US App LEXIS 25117
Non-Indian grandmother's complaint, objecting to placement of non-Indian grandson by tribal judge, must fail, where grandmother originally obtained custody of grandson through Tribal Court, relinquished that custody after her husband died, then sought 2 months later to remove child from his mother's custody and take him home with her but tribal judge placed child in non-relative foster home instead, because, in submitting to Tribal Court's jurisdiction on issue of custody in past, grandmother waived objection to that court's jurisdiction due to non-Indian status of child, and Tribal Court's determinations regarding custody in this situation, under exclusive jurisdiction of 25 USCS § 1911(a), are virtually unreviewable. LaBeau v Dakota (1993, WD Mich) 815 F Supp 1074
Pursuant to state defendants' Fed. R. Civ. P. 12(b)(6) motion, Indian tribe parent stated claim under Indian Child Welfare Act § 1911(d), 25 USCS § 1911(d), as factual questions remained whether state court failed to give credit to tribal resolution involving tribe member's daughter in state court child custody proceedings. Doe v Mann (2003, ND Cal) 285 F Supp 2d 1229
25 USCS § 1911(a) is inapplicable to paternity determination and child support enforcement when state is party and other party is Indian. State ex rel. Department of Human Servs. v Jojola (1983) 99 NM 500, 660 P2d 590, cert den and app dismd (1983) 464 US 803, 78 L Ed 2d 69, 104 S Ct 49
One child was member of Yankton Sioux Tribe (YST), and other child was eligible for enrollment in YST; both children were eligible for enrollment, but were not yet enrolled, in Sisseton-Wahpeton Sioux Tribe (SWST); based on tribe's requests, transfer hearing was held, but YST withdrew its request for transfer to allow case to be transferred to SWST; however, where SWST lacked jurisdiction over one of children, court denied request to transfer, finding good cause to contrary since only court that had jurisdiction over both children was state court and expert testified that children should be kept together. People ex rel. T.I. (2005) 2005 SD 125, 707 NW2d 826
Appeals court erred in reversing trial court order because trial court correctly concluded there was good cause, as provided in Indian Child Welfare Act, 25 USCS § 1911(b) and Minn. Stat. § 260.771, subd. 3, to deny transfer of jurisdiction to tribal court of parental termination proceedings because child did not reside on and was not domiciled on reservation; further, there was nothing in record to suggest that resort to good-cause exception was done for purposes of undermining ICWA, and petition to transfer was filed at advanced stage of proceedings. In re Child of T.T.B. (2006, Minn) 724 NW2d 300
Unpublished Opinion
In child-in-need-of-aid proceedings, superior court did not err by denying tribe's motion to transfer jurisdiction under 25 USCS § 1911(b); there was no merit to argument that superior court found that tribal court was incompetent, and superior court did not weigh best interest of children in deciding transfer issue; other issues raised by tribe did not have to be decided because no arguments were made. Shageluk Ira Council v Office of Children's Servs. (2009, Alaska) 2009 Alas LEXIS 25
3. -Domicile or residence
Under general common law principles, domicile of illegitimate children follows that of their mother, therefore, children born to unmarried Indian mother who was domiciled on reservation were also domiciled on reservation within meaning of statute, even though they were not born on reservation and had never lived there, and thus tribal court had jurisdiction over adoption of children. Mississippi Band of Choctaw Indians v Holyfield (1989) 490 US 30, 104 L Ed 2d 29, 109 S Ct 1597
State court had concurrent jurisdiction with tribal court over Indian baby's adoption, where birth parents were domiciled off-reservation and voluntarily repudiated application of Indian Child Welfare Act, 25 USCS § 1901 et seq., and tribal court jurisdiction. Navajo Nation v Norris (2003, CA9 Wash) 331 F.3d 1041, 2003 CDOS 4856, 2003 Daily Journal DAR 6139
District court properly dismissed non-Indian father's challenge to tribal court's jurisdiction to rule on custody of his child as child was Indian who was living on reservation and father had made no effort to exhaust tribal court remedies. Boozer v Wilder (2004, CA9 Wash) 381 F.3d 931
Indian Child Welfare Act, 25 USCS § 1901 et seq., does not apply where, tribal court of tribe, which had intervened in adoption proceeding of Indian child in state court, lacks jurisdiction on basis of domicile or wardship order. In re Adoption of T.R.M. v D.R.L. (1986, Ind App) 489 NE2d 156, vacated (1988, Ind) 525 NE2d 298, cert den (1989) 490 US 1069, 104 L Ed 2d 636, 109 S Ct 2072 and (criticized in Leatherman v Yancey (In re Baby Boy L.) (2004) 2004 OK 93, 103 P3d 1099)
4. Full faith and credit
Tribal counsel decision that it would be in minor child's best interests to remove child from his home and place child under tribal custody must be given full faith and credit by state under 25 USCS § 1911(d), and thus, for purposes of tribe's eligibility for federal foster care payments under 42 USCS § 672(a), child's removal was result of judicial determination. Native Village of Stevens v Smith (1985, CA9 Alaska) 770 F.2d 1486, cert den (1986) 475 US 1121, 90 L Ed 2d 185, 106 S Ct 1640
Section 1911 of Indian Child Welfare Act (25 USCS § 1911) gave Native villages, which met legal test for sovereign tribes, and their individual residents private rights of action in federal court; however, Act did not provide any exclusive means for enforcing rights recognized by § 1911(d), and therefore, villages had private right of action under 42 USCS § 1983 for enforcement of federal right created by § 1911, which supports award of fees under § 1983. Native Village of Venetie IRA Council v Alaska (1998, CA9 Alaska) 155 F.3d 1150, 98 CDOS 7249, 98 Daily Journal DAR 10049
25 USCS § 1911(d), does not require that public acts, records, and judicial proceedings of any Indian tribe be accorded greater weight than public acts, records, and judicial proceedings of state and state court acting within scope of its judicial capacity to determine personal jurisdiction, would not be required to relinquish jurisdiction based upon court order of sister state or Tribal Court issued more than one year later. Navajo Nation v District Court for Utah County, Fourth Judicial Dist. (1985, DC Utah) 624 F Supp 130, affd (1987, CA10 Utah) 831 F.2d 929
Where paternal grandparents of two young Tlingit children had child custody petition pending in superior court, tribal council denied due process to maternal grandparents by approving parental grandparents' adoption of child without giving maternal grandparents prior notice of tribal council adoption proceedings or opportunity to be heard. In Alaska state courts, tribal council resolutions were not entitled to full faith and credit under Indian Child Welfare Act of 1978. Starr v George (2008, Alaska) 175 P3d 50
No comments:
Post a Comment