Copyright (c) The Regents of the University of California 1989.
UCLA Law Review
ARTICLE: FIGHTING OVER INDIAN CHILDREN: THE USES AND ABUSES OF JURISDICTIONAL AMBIGUITY.
AUGUST, 1989
36 UCLA L. Rev. 1051
Author
Barbara Ann Atwood *
Excerpt
INTRODUCTION
A boy, the son of an Indian father and non-Indian mother, is the subject of a child custody dispute between the parents. Although the family resides for several years on the reservation of the father's tribe, the mother takes the child off the reservation after separating from the father. The mother files for divorce in the local state court and, after a hearing in which the father participated, obtains the decree of divorce and an order recognizing her right to custody of the child. Several months later, when the child is visiting the father on the reservation, the father seeks a custody determination in tribal court. The tribal court issues an ex parte order awarding temporary custody to the father. In response, the mother asks the state court for an order enforcing the initial custody decree. The state court issues a contempt citation against the father, and the tribal court enjoins the mother from removing the Indian child from the reservation. 2
The rules of decision for such an impasse between state and tribal courts are ambiguous, and that ambiguity takes its toll on all participants in the proceeding. Conflicting decrees from the tribal court and state court undermine the authority of each sovereign. Unpredictable results produce chaos in the lives of the parents. The discontinuity may cause permanent harm to the child. 3 Moreover, with the increasing mobility of American Indians and the attendant increase in marriages outside the tribe,4 the ...
A boy, the son of an Indian father and non-Indian mother, is the subject of a child custody dispute between the parents. Although the family resides for several years on the reservation of the father's tribe, the mother takes the child off the reservation after separating from the father. The mother files for divorce in the local state court and, after a hearing in which the father participated, obtains the decree of divorce and an order recognizing her right to custody of the child. Several months later, when the child is visiting the father on the reservation, the father seeks a custody determination in tribal court. The tribal court issues an ex parte order awarding temporary custody to the father. In response, the mother asks the state court for an order enforcing the initial custody decree. The state court issues a contempt citation against the father, and the tribal court enjoins the mother from removing the Indian child from the reservation. 2
The rules of decision for such an impasse between state and tribal courts are ambiguous, and that ambiguity takes its toll on all participants in the proceeding. Conflicting decrees from the tribal court and state court undermine the authority of each sovereign. Unpredictable results produce chaos in the lives of the parents. The discontinuity may cause permanent harm to the child. 3 Moreover, with the increasing mobility of American Indians and the attendant increase in marriages outside the tribe,4 the ...
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