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

Authors

Elizabeth MacLachlan

Abstract

State courts have historically exercised jurisdiction over family law cases. However, under the Indian Child Welfare Act (ICWA), Indian child custody and adoption cases have been taken out of state jurisdiction and placed with Indian tribal governments. State courts have pushed back against proper deference to ICWA and violate ICWA by misapplying its provisions and refusing to transfer custody and adoption cases to tribal courts. This Note analyzes the state-tribal tensions surrounding ICWA and argues that the primary reason for the lack of full state acceptance of ICWA is that, historically, states have had nearly total jurisdiction over family law disputes, particularly those that go to the core of ICWA—child custody and adoption. In recent years, some states have changed their tune and have sought to appropriately apply ICWA. Even so, misapplication of the law remains a problem in many state courts. In December 2016, for the first time since ICWA was enacted, the Bureau of Indian Affairs published updated rules and guidelines to clarify ICWA requirements. This is a major step toward full compliance of ICWA in state courts, despite the resistance of states to relinquish their jurisdiction over Indian family law cases.

Rights

© 2018 Brigham Young University Law Review

Recommended Citation

Elizabeth MacLachlan, Tensions Underlying the Indian Child Welfare Act: Tribal Jurisdiction over Traditional State Court Family Law Matters, 2018 BYU L. Rev. 455 (2018).
Available at: https://digitalcommons.law.byu.edu/lawreview/vol2018/iss2/16