Child Custody under Tribal Law

Recently updated on April 27th, 2025 at 06:31 am

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Endnotes

1. I’m dealing with a child custody case – does it matter if anyone is a tribal member? Is there a tribal law that deals with child custody?
   1. The relevant law is called the Indian Child Welfare Act (ICWA). ICWA was passed in 1978 and it prescribes certain rules that have to be followed when a child custody case involves an Indian child. ICWA was passed to address a rampant problem of private and state agencies removing Indian children from their homes and placing them in non-Indian homes. ICWA recognizes that Tribes have jurisdiction over Indian children. It sets minimum Federal standards for removing Indian children from the custody of their parents. All birth parents have certain parental rights and courts are careful about terminating those rights. ICWA is designed to ensure that Indian parents and their parental rights are protected. With custody cases, ICWA institutes a rule that placing an Indian child with their extended tribal family, or even with another tribal family, is the preferred approach (rather than removing the Indian child into State foster or adoption systems). 25 U.S.C. § 1915 “Placement of Indian Children”
2. Who qualifies as an Indian child under ICWA?
   1. If you’re wondering if your child counts as an Indian child under ICWA, you need to ask two questions. The first question to ask is whether the child is an enrolled tribal member. ICWA doesn’t set its own rules for being an “enrolled tribal member,” rather, it defers to how each individual tribe defines eligibility for membership. All the law requires is that an Indian child be under 18, be unmarried, and be, “a member of an Indian tribe.” (25 U.S.C. § 1903 Clause 4)
   1. If the answer to the first question is “yes,” then ICWA applies. If the answer is “no,” then you need to ask a second question: is the child eligible to be a tribal member AND is the child biologically the child of a tribal member? To answer this question, you would need to know what tribes the child could potentially belong to and see what their membership requirements are. Proof of the child being the biological child of a tribal member has to be demonstrated in court. This can be shown with documentation like birth certificates or signed affidavits, or if necessary, through a DNA test. If the answer to question two is “yes,” then ICWA applies. 
   1. If the answer to both of these questions is “no,” then ICWA does not apply.
3. What are some examples of how ICWA works?
   1. You are the parent of an Indian child. The child’s other parent is a tribal member and is the biological parent of the child. You are the biological parent of the child and you are not a tribal member. The child’s tribal parent is freely and voluntarily relinquishing their parental rights and wants to sign their rights to the child’s tribal grandparent. Does ICWA apply?
      1. No. ICWA applies when a child is being removed from both of their parents’ custody. Your parental rights and parental claim to the child have not been given up, so the child hasn’t been removed from your custody. ICWA upholds your parental rights and does not allow for the child’s tribal grandparent to override your parental rights.
   1. Your sibling marries a tribal member, and they have a child together. The child is a tribal member. Both of the child’s parents pass away, and you’d like to be granted custody of the child. You are not a tribal member. The child’s tribal grandmother is seeking custody as well. Does ICWA apply?
      1. Yes. ICWA applies because the child’s parents no longer have parental rights because they’ve passed. So now the child has to be placed, and ICWA kicks in. ICWA may sort the “preferred placement” so that the child’s tribal grandmother is higher on the list than you. This is because ICWA protects an Indian child’s right to remain with tribal family in the event that they can no longer be in the custody of their parents. 
4. My niece/nephew is a member of our tribe and their parents both lost custody, can the state take my niece/nephew away or can I file for custody?
   1. You can file for custody. If both you and the child are tribal members, then it’s best to file for custody in tribal court since tribes have exclusive jurisdiction over custody cases involving Indian children. In other words, the tribal court has first claim over the case, and a State court would have to give good reason for not honoring the tribal court’s claim. 25 U.S.C. §1911(a)
   1. It’s likely that ICWA will apply, and as a family member, your bid for custody will be preferred (unless another family member makes a bid for custody, then you’ll each have to demonstrate why you’re the better choice with regards to the welfare of the child). 
5. My ex is a tribal member, and so is our kid, but I’m not. Does that mean my ex will get full custody or that their family (also tribal members) can get custody of my kid?
   1. In order for your ex to get full custody of your child, they would have to petition the court to terminate your parental rights. They would then have to demonstrate that the court should terminate your rights. They would have to show something like evidence of abuse, or parental mental illness, or generally a significant risk of harm to the child, to convince a court to terminate your rights.
   1. It’s important to note that ICWA’s preference standards prioritize parents first – it’s only when neither of the parents are a suitable option for the placement of the Indian child that ICWA looks at anyone else who might be eligible for custody or seeking custody. Even then, ICWA doesn’t first look at all extended, Indian family members and then at all extended non-Indian family members. All family members, Indian and non-Indian alike, have equal footing under ICWA. 25 U.S.C. § 1915 Q 16.3
   1. The only way in which tribal membership might be relevant is if it serves as proof that you can provide for you Indian child by ensuring they remain connected to their community and their culture. Demonstrating that maintenance of connection is part of demonstrating that you are capable of providing for your child, which helps solidify your custody claim.

Sources

1. Tribal Court Clearinghouse: A Project of the Tribal Law and Policy Institute – Indian Child Welfare Act of 1978 (25 U.S.C. §§ 1901-63). Retrieved April 13, 2021, from https://www.tribal-institute.org/lists/chapter21_icwa.htm

2. National Indian Law Library – ICWA Guide Online, Topic 2. Jurisdiction. Retrieved April 13, 2021, from https://narf.org/nill/documents/icwa/faq/jurisdiction.html

3. National Indian Law Library – ICWA Guide Online, Topic 16. Placement. Retrieved April 13, 2021, from https://narf.org/nill/documents/icwa/faq/placement.html#Q3

I’m definitely nervous about putting my name on this, but here’s my LinkedIn profile link: www.linkedin.com/in/kae-rogers-sulaw