requirements of “fair play and substantial justice.” 130 And the requirements for personal
jurisdiction in state and federal courts also apply to tribal courts. 131
ICWA plainly exceeds these due process limits by purporting to grant to tribal courts
nationwide jurisdiction over cases involving children with only a biological connection to that
tribe. A child who is merely born eligible for tribal membership—that is, who has the requisite
genetic ancestry—has not thereby purposefully availed herself of any privileges of tribal law.
One cannot “purposefully avail” oneself of one’s ethnicity. One could hardly imagine, say, a
Virginia court asserting personal jurisdiction over a child welfare proceeding in California on the
grounds that the child’s ancestors came from Virginia, or parents came from Virginia, or that the
child was conceived in Virginia. Yet that is essentially the nationwide jurisdiction ICWA gives
to tribes. The minimum contacts requirement is certainly satisfied when a tribal court exercises
jurisdiction over tribal members domiciled on the reservation, but it is not satisfied in cases
involving off-reservation children whose only connection to a tribe is their biological ancestry.
(Nor have a child’s foster or would-be adoptive parents engaged in conduct in connection with
the tribal forum such that tribal jurisdiction satisfies fair play and substantial justice simply
because they foster a child or file an adoption petition in state court.)
130 Id. at 292 (quoting Int’l Shoe, 326 U.S. at 316).
131 See, e.g., Red Fox v. Hettich, 494 N.W.2d 638, 645 (S.D. 1993) (“the same due process standards which govern
state court assertions of jurisdiction over nonresident defendants apply to tribal courts.”). Contra, In re Interest of
Armell, 550 N.E.2d 1060, 1068 (Ill. App. Ct. 1990) (holding that Congress’s powers with regard to tribes overrides
the minimum contacts analysis). David Castleman, Personal Jurisdiction in Tribal Courts, 154 U. PA. L. REV. 1253,
1268 (2006), contends that these limitations on personal jurisdiction are “based on Western values, not tribal ones,”
but sovereignty itself is a “Western concept.” DAVID EUGENE WILKINS & HEIDI KIIWETINEPINESKIIK STARK,
AMERICAN INDIAN POLITICS AND THE AMERICAN POLITICAL SYSTEM 312 (3d ed. 2011). Given that all American
Indians are citizens of the United States, it is appropriate (indeed, mandatory) that Congress protect their due process
rights. In any event, Castleman acknowledges that tribal courts themselves employ the minimum contacts /
purposeful availment analysis. Supra at 1268–77. See also Nelson v. Pfizer, 8 Navajo Rptr. 369, 374 (2003)
(employing minimum contacts test); In re Estate of Tasunke Witko v. G. Heileman Brewing Co (Rosebud Sioux Tr.
Ct., 1994), rev’d 23 Indian L. Rep. 6104 (Rosebud Sioux Sup. Ct. 1996) (same). See further Nell Jessup Newton,
Tribal Court Praxis: One Year in the Life of Twenty Indian Tribal Courts, 22 AM. INDIAN L. REV. 285, 322–26
(1998) (describing application of personal jurisdiction doctrine by tribal courts).