NCJ Number
66975
Journal
Arizona Law Review Volume: 21 Issue: 4 Dated: (1979) Pages: 1123-1145
Date Published
1979
Length
23 pages
Annotation
THIS ESSAY DISCUSSES THE INDIAN CHILD WELFARE PROBLEM AND ALSO THE PROBLEMS CONFRONTED BY STATE AND TRIBAL COURTS IN DETERMINING AND ENFORCING JUDICIAL DECISIONS CONCERNING AMERICAN INDIAN CHILD CUSTODY.
Abstract
MOST INDIAN CHILDREN SEPARATED FROM THEIR NATURAL PARENTS ARE PLACED INTO THE CARE OF NON-INDIANS. TRIBAL COURTS HAVE TRIED TO ASSERT JURISDICTION OVER CHILD CUSTODY PROCEDURES, BUT IN SOME INSTANCES STATE COURTS HAVE ASSERTED JURISDICTION OVER INDIAN CHILDREN. STATE COURTS HAVE OFTEN FAILED TO RECOGNIZE THE ESSENTIAL TRIBAL RELATIONS OF INDIAN PEOPLE AND THE CULTURAL AND SOCIAL STANDARDS PREVAILING IN INDIAN COMMUNITIES AND FAMILIES. BECAUSE OF TRIBAL SOVEREIGNTY, THE JUDGMENTS OF THE STATE COURTS HAVE NOT ALWAYS BEEN ENFORCEABLE ON THE RESERVATIONS, WHILE TRIBAL COURT JUDGMENTS, UNTIL RECENTLY, HAVE NOT BEEN ENFORCEABLE IN STATE COURTS BECAUSE THE FULL FAITH AND CREDIT CLAUSE WAS DETERMINED TO BE INAPPLICABLE TO INDIAN TRIBES. THE INDIAN CHILD WELFARE ACT OF 1978 ESTABLISHED THAT JURISDICTION WILL NO LONGER BE PREDICATED ON GEOGRAPHICAL FACTORS BUT ON THE ETHNIC IDENTITY AND TRIBAL TIES OF THE CHILD. TRIBAL COURTS NOW HAVE EQUAL STANDING WITH STATE COURTS AND HAVE REAL AUTHORITY TO ADJUDICATE CHILD CUSTODY ISSUES. THE ACT HAS THREE LIMITATIONS CONCERNING THE TRIBE'S EXTRATERRITORIAL JURISDICTION: (1) ONLY THOSE CASES INVOLVING THE SEVERANCE OF THE PARENT-CHILD RELATIONSHIP MAY BE TRANSFERRED FROM STATE TO TRIBAL COURT; (2) AN INDIAN PARENT MAY VETO THE TRANSFER; AND (3) THE STATE COURT MAY DETERMINE THAT THERE IS GOOD CAUSE TO RETAIN JURISDICTION IN ORDER TO PROVIDE A MORE CONVENIENT FORUM OR TO PROTECT THE RIGHTS OF THE INDIAN PARENTS, CHILD, AND TRIBE. FOOTNOTES ARE INCLUDED. (JLF)