Native American tribes are considered by the United States and state governments to be their own separate nations. In the United States, there are over 500 federally recognized Native American Tribes. The interaction between laws governing Native American Tribes and those governing non-Native American citizens can often be complex. This complexity is evident when handling the custody of children who are members of a recognized Native American tribe. To address these complicated issues, the United States enacted the Indian Child Welfare Act (ICWA) and made specific provisions for the process of handling custody matters involving Native American children
The ICWA provides that, for custody actions involving Native American children who live on a Native American reservation, that the tribe shall have exclusive jurisdiction to decide the custody of the child. Therefore, if a reservation is located within a state and the child lives on the reservation, the state court may not decide custody of the child. For Native American children who do not live on a reservation, however, the ICWA does not impact the authority of a state court to decide custody of the child.
The ICWA appears to be primarily concerned, at least with respect to custody proceedings, with actions involving foster care placement of a Native American child, or the termination of the parental rights of a Native American child’s parents. In circumstances like these and where the child does not live on a reservation, the ICWA requires that the case be transferred to the tribal court unless there is a good reason not to do so. This is consistent with the ICWA’s stated policy of protecting and promoting the stability and security of Native American tribes.
While Pennsylvania does not itself have any federally recognized tribal reservations, there are undoubtedly a number of children in the commonwealth that would be entitled to protection by the ICWA. If you have a custody issue involving a Native American child, please contact our office for a consultation.