30 Children’s Legal Rights Journal [Vol. 37: 1 2017]
the parties might lack a forum. Nor does tribal court jurisdiction over off-reservation children
ensure that their cases are decided by the court closest to the child. On the contrary, it requires
that their cases—which would ordinarily be decided by state courts under non-discriminatory
state law—be decided instead by an entity, perhaps geographically distant, which is connected to
the child solely by race. The resulting jurisdictional clashes, with lengthy disputes over whether
“good cause” exists to deny transfer, and often with time-consuming appeals and remands,
frequently disrupt what would otherwise be a routine matter. Finally, the status exception is
applicable only where the exercise of jurisdiction “is in the child’s interest, not merely the
interest or convenience of the feuding parties.” 157 But many courts have deemed the child’s best
interest to be an improper consideration with regard to ICWA’s jurisdiction transfer
The South Dakota Supreme Court has approached something like a status-exception
theory in ICWA cases. In one case, it declared that tribal jurisdiction depends “on whether the
matter demands exercise of the tribe’s responsibility of self-government. There can be no
greater threat to essential tribal relations and to the tribal power of self-government than to
interfere in questions of custody of tribal members.” 159 But the self-government question is
relevant to the question of retained sovereignty, and thus ultimately relevant to subject-matter
jurisdiction—it simply does not address the due process requirements of personal jurisdiction.
The importance of a subject matter to tribal self-government is a factor in the determination of
157 In re Thomas J.R., 663 N.W.2d at 741–42.
158 See Yavapai-Apache Tribe v. Mejia, 906 S.W.2d 152, 169 (Tex. App. 1995); In re Armell, 194 Ill. App. 3d 31,
39 (1990); C.E.H. v. L.M. W., 837 S.W.2d 947, 954 (Mo. Ct. App. 1992); In re Interest of Zylena R., 284 Neb. 834,
851–52 (2012); Contra, In re Appeal in Maricopa County Juvenile Action No. JS–8287, 828 P.2d 1245, 1251 (Ariz.
Ct. App. 1991); In re Robert T., 200 Cal. App. 3d 657, 665 (1988); In re T.R.M., 525 N.E.2d 298, 308 (1988); In re
N.L., 754 P.2d 863, 869 (Okla. 1988); In re J.J., 454 N.W.2d 317, 331 (S.D. 1990).
159 People ex. rel. G.R.F., 569 N.W.2d 29, 33 (S.D. 1997) (quoting In re D.L.L. and C.L.L., 291 N. W.2d 278, 281