8 Children’s Legal Rights Journal [Vol. 37: 1 2017]
In passing ICWA, Congress sought to preserve and strengthen Indian families and tribes
by preempting state child welfare laws that led to family breakup. Among other things, it gives
tribal courts exclusive jurisdiction over child custody cases involving tribal members on
reservations, 32 orders state and federal courts to give full faith and credit to the child custody
decisions of tribal courts, 33 requires notification of parents and tribes regarding involuntary
proceedings such as the severance of parental rights, 34 mandates procedures to ensure that tribal
members know their rights when asked to sign papers to terminate a parent-child relationship, 35
and employs the “prevailing social and cultural standards of the Indian community” in child
welfare cases. 36
Had ICWA stopped there, it would hardly be controversial. But it goes further—and falls
short—in many other ways.
B. ICWA’s Basic Presumptions: The Rights of Parents, Tribes, and Children
The problems begin with the definition of an “Indian child.” Congress, understandably
reluctant to interfere with the authority of tribes to determine their own membership, deferred
wholesale to tribal authorities on the question of who does and does not qualify as Indian for
purposes of ICWA. The Act defines an “Indian child” as any child who is a member of a tribe,
32 25 U.S.C. § 1911(a) (2012). Divorce proceedings do not, however, qualify as child custody proceedings under
ICWA. Id. § 1903( 1).
33 Id. § 1911(d). It does not, however, require tribal courts to accord full faith and credit to state proceedings. See
generally B. J. Jones, Tribal Considerations in Comity and Full Faith and Credit Issues, 68 N.D. L. REV. 689 (1992)
(while state courts are often obligated to give full faith and credit to tribal court judgments, tribal courts are not
required to do the same to state court decisions). As Ivy N. Voss observes, “Tribal courts are not subject to
provisions of the ICWA, presumably because they are expected to act in harmony with Indian priorities.” In the
Best Interest: The Adoption of F.H., an Indian Child, 8 BYU J. PUB. L. 151, 164 (1993).
34 25 U.S.C. § 1912(a) (2012).
35 Id. § 1913(a).