American Judges Association
Beyond Minimum Standards: Federal Requirements and State Interpretations of the Indian Child Welfare Act
Date of this Version
Court Review, Volume 45, Issue 1-2, 26-31
Awoman comes to state court with a tribal custody order, seeking to modify its provisions. The state removes a child from her home and her mother is a tribal citizen. A couple seeks a divorce in state court but both are tribal citizens. When these cases appear in state courts, practitioners need to know how and where family law and Indian law intersect, and how that intersection shifts the cases out of the majority of family law cases in state courts. Because family law is such a large portion of the civil docket, it is easy for certain procedures to become routine. However, some cases involving tribal citizens require the application of different laws and different standards which are hardly routine. The intersection of family law and Indian law may account for a small number of cases, but particularly in states with high Native populations it is necessary for all state court practitioners to have a basic understanding of the issues involved.
The appearance of a tribal citizen or tribal court order in state court may cause confusion for state court judges and practitioners. Judges and lawyers may try to handle the case under the state family laws with which they are already familiar. However, there are specific federal and state laws which govern many of these situations. On the federal level, the most important is the Indian Child Welfare Act (ICWA). ICWA requires certain minimum federal standards be met when an Indian child is in state court. However, courts are also grappling with the Violence Against Women Act (VAWA), and the Adoption and Safe Families Act (AFSA). In addition, state laws can provide more than the federal minimum standards provided by ICWA and also affect cases when ICWA does not apply. Specifically, the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) as adopted by the state, and various full faith and credit rules and interpretations, address tribal courts and tribal court orders when in state court.
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