This cannot be correct. The fact that Congress acts under its Indian Commerce Clause
power, or that it intended to protect tribes, cannot override the requirements of due process. 152
One might argue that ICWA’s jurisdictional rules fall within a long-recognized exception
to the minimum contacts requirement called the “status” rule, which allows state courts to hear
certain actions to determine the status of citizens—such as divorce or custody matters—even if
the defendants to those actions are beyond the state courts’ jurisdiction. 153 But this argument
would fail because the status exception only allows a court to hear a case where the child is
present in the forum, while the parent is not. 154 That is not what happens in ICWA cases in
which children who lack minimum contacts to the tribal forum, do not live on reservations, and
may never have even visited a reservation, have their fates decided by tribal courts. 155 Also, the
purposes of the status exception are to prevent jurisdictional conflicts and to ensure that a
custody matter is decided by courts in the state where the child has the closest connection. 156 But
ICWA does not prevent jurisdictional conflicts; it causes them. State court adjudication is
already available in these off-reservation cases, so there is no risk that, absent tribal adjudication,
152 Del. Tribal Bus. Comm. v. Weeks, 430 U.S. 73, 83–85 (1977) (Congress’s “plenary” power to legislate with
regard to Indian tribes does not trump due process); cf. Reid v. Covert, 354 U.S. 1, 17 (1957) (Congress could not
subject civilian U.S. citizens to military court jurisdiction pursuant to its authority to regulate the military forces);
Walden v. Fiore, 134 S. Ct. 1115 (2014) (applying purposeful availment / minimum contacts analysis in drug
trafficking case even though Congress can prohibit drug trafficking under the Interstate Commerce Clause). While
jurisdictional limits may be looser in criminal law, see, e.g., United States v. Ali, 718 F.3d 929, 944 (D.C. Cir.
2013), domestic child welfare cases are civil law matters quintessentially subject to state court jurisdiction—and to
153 See Pennoyer v. Neff, 95 U.S. 714, 734 (1877); Schaffer v. Heitner, 433 U.S. 186, 208 n. 30 (1977).
154 See In re J.D.M.C., 739 N.W.2d 796, 813 (S.D. 2007); State ex rel. W.A., 63 P.3d 607, 616 (Utah 2002) (status
exception enables state courts to determine interests of children residing in that state, and in order to prevent putting
children in legal limbo); McCaffery v. Green, 931 P.2d 407, 411 (Alaska 1997) (“the ties and relations between a
parent and child create ties and relations between the parent and the state in which the child lives sufficient to satisfy
notions of fairness in exercising personal jurisdiction.”).
155 Consider, for instance, Renteria v. Shingle Springs Band of Miwok Indians, No. 2:16-CV-1685-MCE-AC, 2016
WL 4597612 (E.D. Cal. Sept. 2, 2016). That case involved three children whose parents were killed in a car
accident, and whose custody then was disputed by surviving family members. Neither the children nor the parents
ever lived on reservation, or even in the same county as the reservation, yet the Miwok tribal court asserted
jurisdiction to order the children placed with a tribal member.