Friday, March 10, 2006

Case Law Development: Tribal Court Has Jurisdiction over Child Dependency Case Even if Court Has Not Been Approved through Department of the Interior

The California Court of Appeals affirmed the transfer of a juvenile dependency proceeding to a tribal court pursuant to the Indian Child Welfare Act, even thought the Secretary of the United States Department of the Interior had not approved its tribal court. The court noted that Section 1911(b) of the ICWA creates "concurrent but presumptively tribal jurisdiction in the case of children not domiciled on the reservation: on petition of either parent or the tribe, state-court proceedings for foster care placement or termination of parental rights are to be transferred to the tribal court, except in cases of 'good cause,' objection by either parent, or declination of jurisdiction by the tribal court."  The Department argued that 25 U.S.C. 1918 required the tribal court of obtain approval of the Department in order to assume jurisdiction over child custody cases, however, the court noted that the procedure contemplated by that statute was necessarily only if the tribal court sought to assert exclusive jurisdiction over these cases.

In re M.A., Coming Under the Juvenile Court Law, 2006 Cal. App. LEXIS 317 (March 9, 2006)
Opinion on the web (last visited March 9, 2006 bgf)

http://lawprofessors.typepad.com/family_law/2006/03/case_law_develo_12.html

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