ICWA Jurisdiction Case Out of North Carolina Court of Appeals


There is a lot going on here, including problematic reasoning over full faith and credit to a tribal court order, but I think it is worth focusing on “ward of the tribal court” language. In 25 USC 1911(a), tribes retain exclusive jurisdiction regardless of the domicile of the child if the child is a “ward of the tribal court.” The weakness in this language was exploited in Rye v. Weasel, the existing Indian family case out of Kentucky (which continues to be one of the few states that upholds this exception).

This opinion essentially creates a definition of “ward”, using the more restrictive language available:

ICWA and the related sections of the Code of Federal Regulations do not instruct as to who should make a finding regarding a child’s status as a tribal court’s ward and North Carolina does not use the term “ward” in the context of adoptions. Black’s Law Dictionary defines a “ward” as “a person, usu[ally] a minor, who is under a guardian’s charge or protection.” WardBLACK’S LAW DICTIONARY (11th ed. 2019). More specifically, Black’s defines “ward of the state” as “[s]omeone who is housed by, and receives protection and necessities from, the government.” Ward of the StateBLACK’S LAW DICTIONARY (11th ed. 2019). For purposes of ICWA, we adopt this definition for the term “Tribal Court Ward.” Applying this definition to the relevant provision of ICWA, once a child has stopped being housed by or provided protections and necessities from the tribe, she will cease being its ward for purposes of 25 U.S.C. § 1911(a)

In 2011, South Dakota DSS was granted full custody of the children. In 2012, the Tribe was granted renewed jurisdiction over the children’s case and placed the children in the care of their “paternal aunt,” Appellant. There is no evidence the children ever made the reservation their domicile or residence after that point in time, nor is there evidence the Tribe housed them or provided protections or necessities thereafter. In fact, the Appellant sought and obtained guardians for the children from the courts of North Carolina. Having lived most of their life outside the Tribe’s reservation and without provision of protections and necessities therefrom, we hold K.L.J. and K.P.J. were not wards of the Tribal Court. The Tribal Court cannot assert exclusive jurisdiction over this matter under 25 U.S.C. § 1911

While I believe this is far too constrained a reading of the text (“protections and necessities” are vague at best, and not required if we were dong a home state analysis of jurisdiction under the UCCJEA, for example), I do think it is a good reminder to tribes to ensure their guardianship codes provide for on-going review of tribal guardianship orders if they wish to maintain the exclusive jurisdiction over the child not living on the reservation. In many states, simply stating that the children are “wards” in the court order is not going to be enough (yes, it should be, but it generally is not).

North Carolina “Reason to Know” ICWA Notice Case


*Whether the evidence presented at the adjudication hearing should have caused the trial court to have reason to know an “Indian child” may be involved and trigger the notice requirement is the issue before us. The federal regulations implementing ICWA and promulgated in 2016, clearly the states court has reason to know an “Indian child” is involved if: “Any participant in the proceeding, officer of the court involved in the proceeding, Indian Tribe, Indian organization, or agency informs the court that it has discovered information indicating that the child is an Indian child.” 25 C.F.R. § 23.107(c)(2) (2018).

The ICWA proscribes that once the court has reason to know the child could be an “Indian child,” but does not have conclusive evidence, the court should confirm and “work with all of the Tribes … to verify whether the child is in fact a member.” 25 C.F.R. § 23.107(b)(1). Federal law provides: “No foster care placement or termination of parental rights proceeding shall be held until at least ten days after receipt of notice by the parent or Indian custodian and the tribe or the Secretary[.]” 25 U.S.C. § 1912(a). Further, a court must “[t]reat the child as an Indian child, unless and until it is determined on the record that the child does not meet the definition of an ‘Indian child.’ ” 25 C.F.R. § 23.107(b)(2).

Other jurisdictions have recognized that “Indian child” status of the juvenile can only be decided by the tribe itself; therefore, only a suggestion that the child may be of Indian heritage is enough to invoke the notice requirements of the ICWA. In re Antoinette S., 104 Cal. App. 4th 1401, 1408, 129 Cal.Rptr.2d 15, 21 (2002). Additionally, ICWA provides that even after the completion of custody proceedings, if the provisions of ICWA were violated, “any parent or Indian custodian from whose custody such child was removed, and the Indian child’s tribe may petition any court of competent jurisdiction to invalidate such action.” 25 U.S.C. § 1914 (2012).

In In re A.R., the Respondent-father claimed that he had “a family connection to a registered Native American group” which consequently qualified his children for the protections under ICWA. In re A.R., 227 N.C. App. 518, 523, 742 S.E.2d 629, 633 (2013). . . . Further, this Court held that “[t]hough from the record before us we believe it unlikely that [the juveniles] are subject to the ICWA, we prefer to err on the side of caution by remanding for the trial court to … ensure that the ICWA notification requirements, if any, are addressed … since failure to comply could later invalidate the court’s actions.” Id.

In the case of In re C.P., the respondent-mother made the bare assertion that she and her children could possibly be eligible for membership with a band of Potawatomi Indians. In re C.P., 181 N.C. App. at 702, 641 S.E.2d at 16. The trial court required the ICWA notice to be sent. Id. When the time required under ICWA had passed without response from the tribe, the trial court allowed two continuances before determining ICWA did not apply and resumed the proceedings. Id. at 703, 641 S.E.2d at 16-17.


Our Court has required social service agencies to send notice to the claimed tribes rather than risk the trial court’s orders being voided in the future, when claims of Indian heritage arise, even where it may be unlikely the juvenile is an Indian child. See In re A.R., 227 N.C. App. at 524, 742 S.E.2d at 634; In re C.P., 181 N.C. App. at 702, 641 S.E.2d at 16.

North Carolia COA Decides Matter on Applicability of ICWA

Here is the opinion in In re H.S.:

NC App Opinion

An excerpt:

DSS sent a standard letter of notice to the Bureau of Indian Affairs (BIA) and did not receive a response. The juveniles’ guardian ad litem met with respondent father who stated that he was not Native American, and respondent mother who stated that she was part Cherokee. He met with the juveniles’ maternal grandmother who stated that she and her family were associated with the Eastern Band of Cherokee Indians. The guardian ad litem gave the Eastern Band of Cherokee Indians’ enrollment office the names of the  juveniles’ parents, maternal grandparents, and maternal great grandparents. None of them
were enrolled members.

N. Carolina COA Affirms Conviction Obtained under State-Tribal Cross-Deputization Agreement

Here are the materials in State v. Kostick (N.C. App.):

Kostick Brief

State Brief

NC COA Opinion

An excerpt:

Pursuant to the Tribal Code of the Eastern Band of the Cherokee Indians and mutual compact agreements between the Tribe and other law enforcement agencies, the North Carolina Highway Patrol has authority to patrol and enforce the motor vehicle laws of North Carolina within the Qualla boundary of the Tribe, including authority to arrest non-Indians who commit criminal offenses on the Cherokee reservation. Our State courts  have jurisdiction over the criminal offense of driving while impaired committed by a non-Indian, even where the offense and subsequent arrest occur within the Qualla boundary of the Cherokee reservation.

ICWA Jurisdiction Case out of North Carolina


Finding the tribe, not the state, has exclusive jurisdiction over child welfare issues arising on tribal land. Also interesting is the state courts’ continued resistance to recognizing tribal-state agreements surrounding ICWA (pp 9-12) (see, eg, In re R.S. (Minn. 2011)).

For purposes of the ICWA, Ellen’s domicile was that of her
parents. See Miss. Band of Choctaw Indians v. Holyfield, 490
U.S. 30, 48, 104 L. Ed. 2d 29, 46 (1989). At the time DSS filed
the juvenile petition on 8 November 2011, respondents were
domiciled in Cherokee, North Carolina, within the Tribe’s Qualla
Boundary land trust.4 Therefore, this case is governed by 25
U.S.C. § 1911, which grants exclusive jurisdiction to the tribal court, “except where such jurisdiction is otherwise vested in
the State by existing Federal law.” 25 U.S.C. § 1911(a).