Fuller Jenkins attorneys are familiar with the specific and unique issue related to divorces involving enrolled tribal members, and the complexities of the Indian Child Welfare Act (ICWA).  The ICWA gives tribal governments a strong voice concerning Native American child custody proceedings by allocating tribes sole jurisdiction over states when the child is domiciled on the reservation and concurrent, but presumptive, jurisdiction over non-reservation Native Americans’ custody proceedings. (25 U.S.C § 1911)

The ICWA lays out the minimal Federal standards for nearly all Indian child custody proceedings, including adoption, voluntary and involuntary termination of parental rights, and removal and foster care placement of Indian children. Section 1903 defines Indian child as “any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.”

The ICWA does not cover child custody hearings during divorce proceeding.

An Indian tribe can request the transfer of a child custody proceedings from a state’s court to the tribal court when an Indian child does not reside or have domicile upon tribal lands. The ICWA states this transfer must be made, unless either parent objects or “good cause” exists not to make the transfer.

If a transfer is denied and parental rights are terminated, the ICWA indicates where an Indian child is to be placed: with extended family first; then other members of the tribe; then other Indians who are not members of the tribe; and finally non-Indians. As with transfers, the ICWA includes a "good cause" exception to the statutory placement preferences, and state courts are split in their interpretation of good cause.

The ICWA allows parents of Indian children to voluntarily waive parental rights to a court “of competent jurisdiction,” i.e., either tribal court when the child is domiciled on tribal lands or state court when the child does not and the tribe has not successfully transferred the case to the tribal court. The ICWA requires that the parents be informed in writing about the full implications of the ICWA. It also decrees that the termination cannot be made prior to birth or within ten days after birth. The ICWA further allows either parent to withdraw consent of the adoption up until a final decree of termination of rights or adoption is issued. Finally it allows the birth parents to petition the court to vacate the adoption within two years if the adoption decree was made under fraud or duress.