Tensions Underlying the Indian Child Welfare Act: Tribal Jurisdiction over Traditional State Court Family Law Matters

By MacLachlan, Elizabeth | Brigham Young University Law Review, March 1, 2018 | Go to article overview

Tensions Underlying the Indian Child Welfare Act: Tribal Jurisdiction over Traditional State Court Family Law Matters


MacLachlan, Elizabeth, Brigham Young University Law Review


I. Introduction

State courts have historically exercised jurisdiction over family law issues.1 The federal government has in most cases left the determination of domestic relations disputes to state courts and legislatures due to state court expertise in the area and the federal government's dislike of deciding family law cases.2 However, through the Indian Child Welfare Act (ICWA or the Act) enacted in 1978, Indian child custody and adoption issues have been taken out of state jurisdiction and placed with Indian tribal governments.3 Before ICWA, Indian children faced risk of removal from their homes at disproportionately high rates and were typically placed in non-Indian homes which contributed to the breakup of Indian families and ultimately the loss of tribal members.4 The purpose of ICWA is to reverse the historic and recent effects of removal of Indian children from their homes and tribal communities5 through both procedural and substantive protections in custody proceedings6 so that "where possible, an Indian child should remain in the Indian community."7

Not all state courts have easily parted with this portion of family law.8 State courts have pushed back against full implementation and support of ICWA because of their traditional jurisdiction over family law matters. From the early years of the existence of the United States, states have struggled against the sovereignty of Indian tribes.9 Instead of accepting tribes as third sovereigns, as the federal government dictates, states often view tribal jurisdiction as an intrusion into state authority.10 In recent decades, the federal government has begun to federalize certain aspects of family law, taking matters such as abortion and the definition of marriage out of the hands of states and into the regulation and constitutional determination of the federal government.11 Many states have found ways to skirt around tribal jurisdiction where ICWA should apply and make Indian child custody determinations in state court.12 Two prominent state court misapplications of ICWA include the best interest of the child exception and the existing Indian family exception.13

The result of state violations of ICWA is that the purpose of ICWA in keeping Indian children in their homes and communities is not met.14 Some states have taken steps to ensure the proper application of ICWA; however, the most important response to the inconsistent state court application of ICWA has come from the Bureau of Indian Affairs (the BIA). In 2015 and 2016, the BIA published new ICWA guidelines and revised rules.15 These new regulations were designed to improve the proper and consistent application of ICWA across the country, thus protecting Indian children and communities.16

This note will examine the lack of state acceptance of ICWA, arguing that this lack of acceptance stems primarily from states seeking to maintain control over child custody family law matters that have traditionally been left to state courts to decide. ICWA is the main intrusion into their jurisdiction in this area, and state courts are reluctant to recognize tribal sovereignty, especially in difficult and emotionally charged child custody disputes. Part II reviews the history and nature of tribal sovereignty and the relationship between the three sovereigns: the federal government, states, and tribes. This background is important to understanding the sovereignty of tribes and the tension between tribal and state jurisdiction. Part III discusses the history of state family law jurisdiction. Part Iv analyzes the purposes and provisions of ICWA. Part v examines state court misapplication or lack of application of ICWA. Part vI discusses the recent ICWA rules and guidelines implemented by the BIA and the potential future impact of those regulations on state court ICWA implementation. Part vII concludes.

II. History of Tribal Sovereignty

A.Discovery and Settlement

The United States recognizes tribal sovereignty. …

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