24 Children’s Legal Rights Journal [Vol. 37: 1 2017]
encompass children born to tribal members who left the reservation to give birth, and found that
such an act does not change the domicile of a person who is, in all other respects, domiciled on
the reservation. 124 This, too, was unremarkable; the law of domicile is commonplace in personal
jurisdiction law, and immigration law for children born to expatriate parents employs this rule. 125
But ICWA’s jurisdictional provisions go much further. Its jurisdiction-transfer provision
applies to any case anywhere in the country that involves a child eligible for tribal membership,
even if not domiciled on a reservation, and even where no party to the case has any significant
contact with the tribe other than biology. This conflicts with basic jurisdictional principles
required by due process of law. 126
Due process limits personal jurisdiction by requiring that before a court adjudicates a
dispute, there must be “contacts” between the forum jurisdiction and the defendant “such that
[the defendant] should reasonably anticipate being haled into court there.” 127 Due process of law
simply “does not contemplate” that a court “may make binding a judgment in personam against
an individual” who has “no contacts, ties, or relations” to that court’s jurisdiction. 128 Where a
person has “carr[ied] on no activity whatsoever” in the forum, and has “avail[ed] [himself] of
none of the privileges and benefits of [the forum’s] law,” then the forum state cannot exercise
jurisdiction because there are no “affiliating circumstances” 129 that would satisfy the
124 Holyfield, 490 U.S. at 48–49.
125 See, e.g., Gaudin v. Remis, 379 F.3d 631, 636–38 (9th Cir. 2004).
126 See Ins. Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 (1982) (personal
jurisdiction requirement is part of due process).
127 World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980). Personal jurisdiction requirements also
apply to plaintiffs, of course, but plaintiffs typically submit themselves to a court’s personal jurisdiction by filing a
complaint. Threlkeld v. Tucker, 496 F.2d 1101, 1103 (9th Cir. 1974).
128 Int’l Shoe Co. v. Washington, Office of Unemployment Comp. & Placement, 326 U.S. 310, 319 (1945).