<tribaljurisdiction>

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The issue of tribal government jurisdiction over children of tribal descent was discussed in the following Alaskan Supreme Court case:

I dissent from this court's affirmance of the superior court's denial of Native Village of Circle's motion to dismiss the state's motion for temporary custody.

…With the passage of the Indian Child Welfare Act (ICWA), Congress implemented the policy of promoting tribal integrity by establishing various procedural and substantive protections to govern Indian child custody matters.

…. Tribes have jurisdiction over their members by virtue of their inherent sovereignty. See Montana v. United States, 450 U.S. 544, 564 (1981) … see also Duro v. Reina, 495 U.S. 676, 685-86 (1990) … A tribe's sovereign authority, moreover, is presumed until Congress affirmatively acts to take such authority away. Native Village of Venetie, 944 F.2d at 556; see also United States v. Wheeler, 435 U.S. 313, 323 (1978) ("[U]ntil Congress acts, the tribes retain their existing sovereign powers.").

Given these principles, in my view it is inconsistent with the doctrine of inherent tribal sovereignty to conclude that 19189 of the ICWA and Public Law 280, taken together, divest tribes of even concurrent jurisdiction over child custody matters. Such a conclusion can only be reached if Public Law 280 is interpreted as a divestiture statute. It is on this point that I find Judge O'Scannlain's analysis in Native Village of Venetie persuasive. There Judge O'Scannlain wrote: The Supreme Court has also adopted the view that Public Law 280 is not a divestiture statute. See Cabazon Band of Mission Indians, 480 U.S. at 207-12, 107 S. Ct. at 1087-90; Bryan, 426 U.S. at 383-90, 96 S. Ct. at 2108-12; see also Walker v. Rushing, 898 F.2d 672, 675 (8th Cir. 1990) ("Public Law 280 did not itself divest Indian tribes of their sovereign power to punish their own members for violations of tribal law. Nothing in the wording of Public Law 280 or its legislative history precludes concurrent jurisdiction.").

. . . . Finally, we note that Congress was aware, while drafting the Indian Child Welfare Act, that the U.S. Department of Justice viewed Public Law 280 as providing for concurrent jurisdiction among state and tribal courts. Then - Assistant Attorney General for Legislative Affairs Patricia M. Wald wrote to Interior and Insular Affairs Committee Chairman Morris K. Udall: "As you may be aware, the courts have consistently recognized that tribal governments have exclusive jurisdiction over the domestic relationships of tribal members located on reservations, unless a State has assumed concurrent jurisdiction pursuant to Federal legislation such as Public Law 83-280."

...The relevant portions of the Indian Child Welfare Act enable the Secretary of the Interior to grant to a tribe, upon receipt of a proper petition, exclusive jurisdiction (over all or a portion of the appropriate "Indian country") or referral jurisdiction of child-custody proceedings. See 25 U.S.C. 1918(b)(2) (1988). Each of these types of jurisdiction is broader than any tribal jurisdiction which is concurrent with the states. Exclusive jurisdiction, of course, is clearly broader than concurrent jurisdiction. Likewise, referral jurisdiction is broader in scope than concurrent jurisdiction, in that referral jurisdiction is concurrent but presumptively tribal jurisdiction. See id. 1911(b). Thus, there is something for a tribe to "reassume" under section 1918 -- namely, exclusive or referral jurisdiction -- even if Public Law 280 is read as not divesting the tribes of concurrent jurisdiction. In sum, giving the benefit of doubt to Alaska, we conclude that Public Law 280 and the Indian Child Welfare Act are, at best, ambiguous as to whether states have exclusive or concurrent jurisdiction over child custody determinations where the tribe has not petitioned for exclusive or referral jurisdiction.

Of course, ambiguities are to be resolved to the benefit of Indians. Montana v. Blackfeet Tribe, 471 U.S. 759, 766, 105 S. Ct. 2399, 2403, 85 L. Ed. 2d 753 (1985). Accordingly, resolving the jurisdictional ambiguities in favor of the villages, we hold that neither the Indian Child Welfare Act nor Public Law 280 prevents them from exercising concurrent jurisdiction. If the native villages of Venetie and Fort Yukon are sovereign entities which may exercise dominion over their members' domestic relations, Alaska must give full faith and credit to any child-custody determinations made by the villages' governing bodies in accordance with the full faith and credit clause of the Indian Child Welfare Act. Id. at 560-62.10

….7. 25 U.S.C. 1911(a) provides: An Indian tribe shall have jurisdiction exclusive as to any State over any child custody proceeding involving an Indian child who resides or is domiciled within the reservation of such tribe, except where such jurisdiction is otherwise vested in the State by existing Federal law. Where an Indian child is a ward of a tribal court, the Indian tribe shall retain exclusive jurisdiction, notwithstanding the residence or domicile of the child. Section 1911(b) provides: In any State court proceeding for the foster care placement of, or termination of parental rights to, an Indian child not domiciled or residing within the reservation of the Indian child's tribe, the court, in the absence of good cause to the contrary, shall transfer such proceeding to the jurisdiction of the tribe, absent objection by either parent, upon the petition of either parent of the Indian custodian or the Indian child's tribe: Provided, That such transfer shall be subject to declination by the tribal court of such tribe.

…¶22 The Uniform Child Custody Jurisdiction Act (UCCJA) has been adopted by all fifty states. …, to determine the initial matter of child custody jurisdiction. In conjunction with the federal Prevention of Parental Kidnaping Act (PKPA), 28 U.S.C. _ 1738A, the UCCJA operates to clarify which among competing jurisdictions shall determine matters of child custody.

…But see Desjarlait v. Desjarlait (Minn. Ct. App. 1985), 379 N.W.2d 139, 143 ("[T]he UCCJA does not apply to jurisdictional disputes between a state court and a tribal court"); Malaterre v. Malaterre (N.D. 1980), 293 N.W.2d 139, 144 (refusing to resolve a child custody issue between a tribal court and a state court on the basis of the UCCJA, based on the fact that the UCCJA "pertains to fact situations which involve jurisdictional disputes with sister states").

(a) avoid jurisdictional competition and conflict with courts of other states in matters of child custody which have in the past resulted in the shifting of children from state to state with harmful effects on their well-being; . . . .

(c) assure that litigation concerning the custody of a child takes place ordinarily in the state with which the child and his family have the closest connection and where significant evidence concerning his care, protection, training, and personal relationships is most readily available and that courts of this state decline the exercise of jurisdiction when the child and his family have a closer connection with another state;

(d) discourage continuing controversies over child custody in the interest of greater stability of home environment and of secure family relationships for the child; . . . .

Section 40-7-102(1), MCA (emphasis added). As a California case stated, "the UCCJA seeks to limit jurisdiction rather than encourage or condone its proliferation." In re Marriage of Hopson (Cal. Ct. App. 1980), 168 Cal. Rptr. 345, 356, 110 Cal. App. 3d 884, 899.

¶25 Likewise, the PKPA, which focuses primarily on custody modification, attempts to isolate jurisdiction in the one court which is best able to determine the best interests of the child. The Congressional Findings and Declaration of Purpose for the PKPA state that:

(4) discourage continuing interstate controversies over child custody in the interest of greater stability of home environment and of secure family relationships for the child;

(5) avoid jurisdictional competition and conflict between State courts in matters of child custody and visitation which have in the past resulted in the shifting of children from State to State with harmful effects on their well-being; . . . .28 U.S.C. _ 1738A (emphasis added).

¶26 The two laws make clear that jurisdictional disputes over custody are not in the best interest of the child. Furthermore, as will be explained more fully below, the laws seek to certify the single "state" to which the child's best interest is connected. Finally, they emphasize how important the initial determination of custody jurisdiction is, as subsequent changes in custody jurisdiction run counter to the purpose of the laws and are, therefore, presumptively disfavored.

¶27 …As such, it becomes imperative that the original determination of custody jurisdiction be the correct one.

¶29 The UCCJA permits a court to assert jurisdiction for reasons other than the child's residence, based on the child's best interests. Section 40-4-211(1)(b), MCA, sets out when it would be in the child's best interests for the state to assume jurisdiction:

However, it explicitly prohibits a state from claiming jurisdiction where only the physical presence of the child would confer jurisdiction, except in limited situations of abuse or abandonment. See § 40-4-211(2), MCA. If no other state has jurisdiction, or where another state has declined to exercise jurisdiction, the state may then assert jurisdiction if it is in the best interest of the child. See § 40-4-211(d), MCA.

See 25 U.S.C. § 1901(3) (stating “that there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children”);

Are children a resource for tribal government existence? Are children owned by governments

25 U.S.C § 1902 (stating that the ICWA implements a policy of promoting “the stability and security of Indian tribes”); see also 25 U.S.C. § 1911(c) (providing that tribe has right to intervene in any foster-care-placement or parental-right-termination proceeding involving child who is member or eligible for membership in that tribe); cf. Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 44-45, 109 S. Ct. 1597, 1606 (1989) (stating that in passing the ICWA Congress was concerned with “the rights of Indian communities vis-à-vis state authorities”). And a tribe's right to determine its membership for tribal purposes “has long been recognized as central to its existence as an independent political community.” Santa Clara Pueblo v. Martinez, 436 U.S. 49, 72 n.32, 98 S. Ct. 1670, 1684 n.32 (1978); see Montana v. United States, 450 U.S. 544, 564, 101 S. Ct. 1245, 1257 (1981) (noting that although they have “lost many of the attributes of sovereignty,” “the Indian tribes retain their inherent power to determine tribal membership”).

Question - tribes claim to be political rather than racial entities - Can a political entity claim ownership of a child?

Parents must understand that agreeing to ICWA will not ensure that they be able to retain their children. It ensures that the tribe will be able to retain their children.

The "Blackfeet presumption" is that when there is doubt about the interpretation of an ambiguous federal statute enacted for the benefit of an Indian tribe, the doubt will benefit the tribe

¶33 The ICWA represents the federal remedy to a nationwide problem. The problem originates from what is in the majority of cases a naturally predisposed inability of states to consider fully the best interests of Indian children in custody proceedings, specifically in the context of their Indian heritage. In particular, Congress found after extensive hearings that (Can we research to see how extensive these hearings were - and sue?) "States, exercising their recognized jurisdiction over Indian child custody proceedings through administrative and judicial bodies, have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families." 25 U.S.C. § 1901(5). The concerns and resultant need for the ICWA are based even more on the fact that, as Congress pointed out, "there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children

and that the United States has a direct interest, as trustee, in protecting Indian children who

are members of or are eligible for membership in an Indian tribe." 25 U.S.C. § 1901(3).

¶37 The value of the ICWA for purposes of the jurisdictional analysis before us is three-fold.

¶38 First, that Congress felt the need to curtail states in these matters indicates that state courts are apt to exercise jurisdiction when the best interests of the Indian child do not necessarily support that assumption of jurisdiction. In other words, it puts states on notice

that they are, in fact, a significant part of the problem, and that they should weigh their

potential assumption of jurisdiction very judiciously. See, e.g., In re M.E.M. (1981), 195

Mont. 329, 339, 635 P.2d 1313, 1319 ("The purpose of the [ICWA] is to remove as far as

possible the white man's perceptions in these matters where Indian values may conflict.")

(Sheehy, J., dissenting). ¶39 Second, the ICWA indicates that regardless of the child's residence, tribal courts are uniquely and inherently more qualified than state courts to determine custody in the best

interests of an Indian child. Relatedly, it accentuates that custody matters that involve Indian

children implicate a broader range of concerns than custody matters that do not involve

Indian children, and furthermore, that those interests are of great importance to the United

States, and of course, to the integrity of Indian tribes. Despite the ICWA's nonapplication

to dissolution-based custody disputes, we also recognize that the tribal court's experience and

abilities in these areas are inherent advantages over state courts and remain as such when the

custody matter before a tribal court happens to occur pursuant to a marriage dissolution. See

generally Bertelson, 189 Mont. at 539, 617 P.2d at 129 ("Presumably the tribal court is better

equipped to consider the ethnic identity as a factor in determining the child's welfare than

is a state court."). In either case, the best interests of the child standard takes on expanded

¶40 Finally, the ICWA demonstrates confidence in the tribal forum, not only for the

substantive expertise of its perspective, but also for its ability to make a fair and appropriate

determination and to serve the interests of all the parties, including the state. See, e.g., In re

M.R.D.B., 241 Mont. at 463, 787 P.2d at 1224 ("We are fully confident the Tribal Court will

consider the best interest of all parties in making its . . . determination."); Halloway, 732

P.2d at 972 ("[W]e are confident that the courts of the [tribe] will give the [custody matter]

the careful attention it deserves and will act with the utmost concern for [the Indian child's]

well-being."). The ICWA also demands that state courts give full faith and credit to the

decisions of the tribal court. See 25 U.S.C. § 1911(d). Therefore, we appreciate that in

terms of our jurisdiction analysis, any disregard for the clear policy behind the ICWA

preferences for a tribal determination instead of a state determination would at least in part

provoke a "decline in the authority of the Tribal Court." Fisher, 424 U.S. at 388, 96 S. Ct.

¶60 The ICWA is one source. It clearly articulates how important Indian children are to the continued existence of Indian tribes within this country. See 25 U.S.C. _ 1901(3) ("[T]here is no resource that is more vital to the continued existence and integrity of Indian tribes than their children"). Especially when Indian children reside on the reservation, they represent the single most critical resource to the tribe's ability to maintain its identity and to determine its future as a self-governing entity. As such, we cannot think of a more legitimate and necessary manifestation of tribal self-government than the tribe's right to have a role in a custody determination of its member children who reside on the reservation with an enrolled parent. Any exercise of state court jurisdiction over reservation Indians in a domestic matter, which is already recognized by this court as uniquely tribal in nature, much less over the tribe's legacy--its children--would clearly infringe on the tribe's sovereign power to govern itself and its right to keep its internal relations free from state authority. See In re M.R.D.B., 241 Mont. at 459, 787 P.2d at 1221 ("[T]hese practices seriously undercut the tribes' ability to continue as self-governing communities. Probably in no area is it more important that tribal sovereignty be respected than in an area as socially and culturally determinative as family relationships.") (quoting Congressional testimony on the ICWA cited

in Mississippi Band of Choctaw Indians, 490 U.S. at 34, 109 S. Ct. at 1601, 104 L. Ed. 2d at 37).

¶61 As the U.S. Supreme Court stated in Fisher, state exercise of authority may bring about a corresponding decline in tribal authority. See also Bertelson, 189 Mont. at 539, 617 P.2d at 129 ("An assumption of state court jurisdiction over Indian child custody disputes poses a substantial risk of conflicting decisions which potentially threaten a decline in tribal authority."). We decline here to undermine the tribe's position as a sovereign entity with the suggestion that merely because a resident Indian child also has significant off-reservation contacts through his non-Indian parent, its authority to exercise jurisdiction in domestic matters over its members who reside on Indian land is put in jeopardy. As the conceptual safeguard on which tribes depend to protect their identity, sovereignty must include at least the right to exercise authority over members within tribal boundaries.

¶62 Although it has yet to address these facts, the United States Supreme Court is another source for how to define the tribe's sovereignty in this context. In Montana, the second exception articulated by the Court recognized tribal jurisdiction over nonmember conduct that threatens or directly affects the tribe's political integrity, economic security, health, or welfare. See Montana, 450 U.S. at 566, 101 S. Ct. at 1258, 67 L. Ed. 2d at 511. Moreover, in Williams, the Court held that states could act only "where essential tribal relations were not involved and where the rights of Indians would not be jeopardized . . . . " Williams, 358 U.S. at 219, 79 S. Ct. at 270, 3 L. Ed. 2d at 253. We conclude that in a child custody dispute which involves an enrolled tribal member and that person's enrolled child, both of whom live within the exterior boundaries of the Reservation, state jurisdiction would threaten the tribe's political integrity and welfare, even though another party to the dispute is a non-Indian who resides off the Reservation.

¶65 There are, however, other significant factors in cases regarding the custody of an

Indian child. The ICWA clearly reflects the expertise of the tribal courts to determine the

best interests of the child in the context of his or her Indian heritage, an aspect of these

children's future lives that if lost, will be difficult if not impossible to regain. This Court has

frequently acknowledged the tribe's expertise as identified in the ICWA, and we have no

reason now to distrust the tribal court's experience and ability to distinguish the best interests

of the child just because the terms of the ICWA do not apply to the specific facts before us.

We also appreciate that domestic matters like this have the potential to be especially

contentious and divisive for families, a sad fact that often inflicts greater harm on the child

than the already difficult changes that occur after a marriage dissolution. The additional

opportunity to contest the forum that will determine the merits of their controversy has the

further potential to create animosity between the parties. Although minor in comparison to

the injury to the child, we recognize that a dispute over jurisdiction could have a similarly

detrimental effect on the relationship between courts and on the parties' perceptions of the

court that ultimately exercises jurisdiction and makes the custody determination, which is

of no advantage to either court or any of the parties. We act here, in part, to reinforce the

tribal court's authority as an arm of the tribe's sovereign power, but also to eliminate public

¶67 Seven Indian Reservations exist within Montana's boundary. As such, interracial

marriages are a fact of life, and, as with other marriages, so are interracial divorces and

custody disputes over the children of those marriages. We take seriously our obligation to

the children of these marriages, as well as our obligation to respect the sovereignty of Indian

tribes in relation to our own responsibility to uphold and enforce the laws of this state. See

generally In re Adoption of Riffle (1996), 277 Mont. 388, 922 P.2d 510 ("[W]e stated that

it was our constitutional duty to preserve the unique cultural heritage and integrity of the

American Indians."); In re M.E.M. (1981), 195 Mont. 329, 333, 635 P.2d 1313 ("In applying

our state law and the [ICWA] we are cognizant of our responsibility to promote and protect

the unique Indian cultures of our state for all future generations of Montanans.").

¶75 I concur with the majority that a district court, prior to assuming jurisdiction over a child custody proceeding when such jurisdiction is shared concurrently with a tribal court, must conduct an inquiry based on the factors enumerated in the majority opinion to determine whether the court should accept or decline to exercise that jurisdiction. Furthermore, I agree that in the case at bar the District Court record is unclear as to the residency of both Stacey and Kinsey. In this regard, due to the importance, complexity and sensitivity of this case, I concur with the majority's decision to remand this case to the District Court to determine Stacey's and Kinsey's residence at the time Shane filed a petition for dissolution with the District Court. However, because this dissolution involves both an Indian parent and a non-Indian parent who has never resided on the Reservation as well as a child who shares each parent's heritage, I disagree with the majority that Stacey's and Kinsey's residence either on or off the Reservation is determinative of whether the Tribal Court has exclusive or concurrent subject matter jurisdiction. Rather, I would conclude that regardless of Stacey's and Kinsey's residence on or off the Fort Peck Reservation, the District Court and the Fort Peck Tribal Court share concurrent jurisdiction in this case. Consequently, the District Court should consider Stacey's and Kinsey's residence as only one of the many factors set forth in the majority opinion to determine which court would provide the most appropriate forum for determining Kinsey's custody, and, therefore, which court should exercise jurisdiction. Upon this basis, I respectfully dissent.

¶76 The express exclusion of divorce proceedings from the ICWA's coverage illustrates

Congress' intent that state and tribal courts should share concurrent jurisdiction over Indian

child custody proceedings arising within a divorce proceeding between an Indian parent and

…¶95 Not only does our decision in Day fail to legitimize the majority's comparison, but an opinion issued by the Ninth Circuit Court of Appeals, Wilson v. Marchington (9th Cir. 1997), 127 F.3d 805, sets forth an analysis showing the impropriety of such a comparison. In Marchington, the Ninth Circuit Court of Appeals concluded that principles of comity, not principles of full faith and credit, govern whether a district court should recognize and enforce a tribal court judgment. Marchington, 127 F.3d at 808. To reach this conclusion, the court noted that, by its own terms, the Full Faith and Credit Clause, Article IV, Section 1 of the United States Constitution, only applies to states. Marchington, 127 F.3d at 808. Furthermore, the court noted that the initial legislation implementing this constitutional clause, 28 U.S.C. _ 1738, passed in 1790 and modified in 1804, was only modified to include territories and possessions. Marchington, 127 F.3d at 808. No where were Indian tribes referenced in either the constitutional clause or the implementing legislation. Marchington, 127 F.3d at 808.

¶96 The court considered many factors to conclude that Congress did not intend to include Indian tribes under the Full Faith and Credit Clause. Marchington, 127 F.3d at 808-09. First, the court pointed out that subsequent statutes, including the ICWA, 25 U.S.C. __ 1901 et seq., expressly extended full faith and credit to certain tribal proceedings. Marchington, 127 F.3d at 809. The court concluded that such an inclusion would not have been necessary if full faith and credit had already been extended to the Indian tribes. Marchington, 127 F.3d at 809. Second, the court specifically noted that Congress' separate listing of territories, possessions and Indian tribes in the ICWA indicated that Congress did not consider these terms as synonymous. Marchington, 127 F.3d at 809. Further, the court pointed out that if Congress intended to include Indian tribes under 28 U.S.C. § 1738, it could have either made specific reference to them in the 1804 amendments or made additional amendments to the statute after ambiguous judicial constructions surfaced. Marchington, 127 F.3d at 809. The court concluded:

Given this history, it would be imprudent of us to now construe the phrase "territories and possessions" in the 1804 statute to assume the meaning of the language Congress used in the Indian Child Welfare Act ("every territory or possession of the United States, and every Indian tribe") (emphasis added) and the Indian Land Consolidation Act.

Certainly, there are policy reasons which could support an extension of full faith and credit to Indian tribes. Those decisions, however, are within the province of Congress or the states, not this Court. Full faith and credit is not extended to tribal judgments by the Constitution or Congressional act, and we decline to extend it judicially. Marchington, 127 F.3d at 809.

¶103 The majority acknowledges that the ICWA expressly excludes custody disputes

arising from a marriage dissolution award. However, the majority states that "[r]egardless

of its literal nonapplication to the facts before us, we cannot ignore the fact that the ICWA

'evinces an emphatic federal policy of protecting the tribal role in proceedings involving

Indian children.' " In fact, the majority pronounces that "we appreciate that in terms of our

jurisdiction analysis, any disregard for the clear policy behind the ICWA preferences for a

tribal determination instead of a state determination would at least in part provoke a 'decline

in the authority of the Tribal Court.' " In other words, the majority requires district courts

to apply the provisions of the ICWA to dissolution proceedings involving custody disputes

over Native American children regardless of the fact that the ICWA itself expressly excludes

…¶107 Consequently, because the statutory provisions of the UCCJA, the PKPA, and the

ICWA, by their own terms, are inapplicable to the case at bar, the majority's application of these provisions to justify "giving" tribal courts exclusive jurisdiction over nonmember parents in child custody proceedings involving Native American children creates improper judicial legislation. Such an imprudent violation of the constitutional prohibition against courts exercising legislative power could easily be avoided while still compelling the recognition of the best interest of the child standard simply by recognizing that the state and tribal courts share concurrent jurisdiction in these child custody matters and admonishing state courts to carefully consider, on a case by case basis, whether such jurisdiction should be assumed using the factors enunciated in the majority opinion.

Barbara Ann Atwood, Fighting Over Indian Children: The Uses and Abuses of Jurisdictional Ambiguity, 36 U.C.L.A. L. Rev. 1051, 1104 (1989). Such an approach would not only respect the parens patriae role of both the state and the tribe, but would also acknowledge each forum's competence in determining whether exercise of its own jurisdiction would serve the best interest of the Indian child. Not to mention that such an approach in child custody matters would also encourage the cooperation between state and tribal courts overall.

5. Barbara Ann Atwood, Fighting Over Indian Children: The Uses and Abuses of Jurisdictional Ambiguity, 36 UCLA L. REV. 1051, 1058 (1989); citing to 1902. Section 1902 states: The Congress hereby declares that it is the policy of this Nation to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family service programs.

Atwood, Barbara Ann. "Identity and Assimilation: Changing Definitions of Tribal Power over Children." Minnesota Law Review April 1999 v.83 i.4 p.927-996 [CSL call number K13 .I55]

Barbara Ann Atwood, Fighting Over Indian Children: The Uses and Abuses of Jurisdictional Ambiguity, 36 UCLA L. REV. 1051, 1058 (1989); citing to 1902. Section 1902 states: The Congress hereby declares that it is the policy of this Nation to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family service programs.

In this Michigan document from the state of Michigan Department of Human Services, dated 10-1-2005, it says the following:

"The FIA has expanded the definition of "Indian Tribe" and "Indian Child" beyond the specific requirements of ICWA to include Michigan state historic Tribes and Canadian Tribes.

-is of tribal ancestry and is so recognized by an Indian Tribe, the Bureau of Indian Affairs or the Department of Indian and Northern Development of Canada.

The above reflects the expanded definition of "Indian child" adhered to by the FIA. Local family courts are encouraged to follow the Indian Child Welfare Act for members of non-federally recognized Indian Tribes."

"any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in and Indian tribe and is the biological child of a member of and Indian tribe"

and "'Indian tribe' means any Indian tribe, band, nation, or other organized group or community of Indians recognized as eligible for the services provided to Indians by the Secretary because of their status as Indians, including any Alaska Native village as defined in section 1602 (c) of title 43"

ICWA is supposed to apply to federally recognized tribes only. It is not to apply to non-federally recognized tribes and it certainly isn't supposed to apply to Canadian Tribes!

Evidently, Michigan isn't the only trying to subject more children to ICWA. From Washington LawHelp:

"In Washington State, administrative rules expand the definition for some purposes to include both Canadian Indians and individuals considered to be Indian by a federally or nonfederally recognized tribe or urban Indian/Alaskan Native community organization."

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