A. Tribal Jurisdiction and Intervention Powers
ICWA gives tribal governments extensive power over cases involving children who are
not tribal members and are not domiciled on reservations. Specifically, it requires state courts
(in the absence of either parental objection or “good cause” to deviate from ICWA’s mandates)
to transfer foster-care and termination-of-parental-rights proceedings to the courts of the child’s
tribe, to be determined there. 119 The 2015 BIA Guidelines apply this rule to all stages of custody
proceedings, including pre-adoption (guardianship) and adoption proceedings. 120 Parents can
block the transfer of foster or termination cases to tribal court, but ICWA also gives tribal
governments power to intervene as parties in such proceedings anywhere in the nation if they
involve Indian children. 121 Also, if a tribe learns after the fact that a state court decided an
adoption matter without tribal involvement, the tribe is entitled to reopen the proceedings and
have them nullified. 122 ICWA’s jurisdictional rules, however, violate the requirements of due
process, particularly the “minimum contacts” rule.
1. Due Process and Minimum Contacts
Tribal jurisdiction over children of Indian parents on reservations seems an unremarkable
example of in personam and territorial jurisdiction. 123 Holyfield read this authority broadly, to
119 25 U.S.C. § 1911(b). “Good cause” is not defined in ICWA, and dispute over its meaning is among the greatest
sources of controversy over ICWA.
120 Guidelines, 80 Fed. Reg. at 10153–54, B. 6.
121 25 U.S.C. § 1911(c).
122 Id. § 1914. Cf. In re S.L., 2006 WL 477772, 1 (Cal. Ct. App. 2006) (remanding termination proceeding of 15-
year-old twins on grounds that ICWA notice requirements had not been followed seven years earlier).
123 See Fisher v. Dist. Court of Sixteenth Judicial Dist. of Montana, in & for Rosebud Cty., 424 U.S. 382, 387–89
(1976) (per curiam). In this regard, ICWA simply reinforced the Supreme Court’s holding that tribal court
determinations of on-reservation child custody proceedings were a routine application of tribal sovereignty.