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25 U.S.C.A. § 1918

United States Code Annotated
Title 25.  Indians
Chapter 21. Indian Child Welfare (Refs & Annos)

Subchapter I. Child Custody Proceedings


§ 1918. Reassumption of jurisdiction over child custody proceedings


(a) Petition;  suitable plan;  approval by Secretary


Any Indian tribe which became subject to State jurisdiction pursuant to the provisions of the Act of August 15, 1953 (67 Stat. 588), as amended by Title IV of the Act of April 11, 1968 (82 Stat. 73, 78), or pursuant to any other Federal law, may reassume jurisdiction over child custody proceedings. Before any Indian tribe may reassume jurisdiction over Indian child custody proceedings, such tribe shall present to the Secretary for approval a petition to reassume such jurisdiction which includes a suitable plan to exercise such jurisdiction.


(b) Criteria applicable to consideration by Secretary;  partial retrocession


(1) In considering the petition and feasibility of the plan of a tribe under subsection (a) of this section, the Secretary may consider, among other things:


(i) whether or not the tribe maintains a membership roll or alternative provision for clearly identifying the persons who will be affected by the reassumption of jurisdiction by the tribe;


(ii) the size of the reservation or former reservation area which will be affected by retrocession and reassumption of jurisdiction by the tribe;


(iii) the population base of the tribe, or distribution of the population in homogeneous communities or geographic areas;  and


(iv) the feasibility of the plan in cases of multitribal occupation of a single reservation or geographic area.


(2) In those cases where the Secretary determines that the jurisdictional provisions of section 1911(a) of this title are not feasible, he is authorized to accept partial retrocession which will enable tribes to exercise referral jurisdiction as provided in section 1911(b) of this title, or, where appropriate, will allow them to exercise exclusive jurisdiction as provided in section 1911(a) of this title over limited community or geographic areas without regard for the reservation status of the area affected.


(c) Approval of petition;  publication in Federal Register;  notice;  reassumption period;  correction of causes for disapproval


If the Secretary approves any petition under subsection (a) of this section, the Secretary shall publish notice of such approval in the Federal Register and shall notify the affected State or States of such approval.  The Indian tribe concerned shall reassume jurisdiction sixty days after publication in the Federal Register of notice of approval.  If the Secretary disapproves any petition under subsection (a) of this section, the Secretary shall provide such technical assistance as may be necessary to enable the tribe to correct any deficiency which the Secretary identified as a cause for disapproval.


(d) Pending actions or proceedings unaffected


Assumption of jurisdiction under this section shall not affect any action or proceeding over which a court has already assumed jurisdiction, except as may be provided pursuant to any agreement under section 1919 of this title.


CREDIT(S)


(Pub.L. 95-608, Title I, § 108, Nov. 8, 1978, 92 Stat. 3074).


HISTORICAL AND STATUTORY NOTES


Revision Notes and Legislative Reports


1978 Acts. House Report No. 95-1386, see 1978 U.S. Code Cong. and Adm. News, p. 7530.


References in Text


The Act of Aug. 15, 1953, referred to in subsec. (a), is Act Aug. 15, 1953, c. 505, 67 Stat. 588, as amended, which enacted section 1162 of Title 18, Crimes and Criminal Procedure, and section 1360 of Title 28, Judiciary and Judicial Procedure, and provisions set out as notes under section 1360 of Title 28.  For complete classification of this Act to the Code, see Tables.


CROSS REFERENCES


Approval, consideration, or determination of petition for assumption of jurisdiction over child custody proceedings by Passamaquoddy Tribe or Penobscot Nation according to this section, see 25 USCA § 1727.


CODE OF FEDERAL REGULATIONS


Procedures governing tribal reassumption of jurisdiction over Indian child custody proceedings, see 25 CFR § 13.1 et seq.


LAW REVIEW COMMENTARIES


Fighting over Indian children:  The uses and abuses of jurisdictional ambiguity.  Barbara Ann Atwood, 36 UCLA L.Rev. 1051 (1989).


Protecting abused children:  A judge's perspective on public law deprived child proceedings and the impact of the Indian Child Welfare Acts.  Edward L. Thompson, 15 Am.Indian L.Rev. 1 (1990).


Tribal court jurisdiction over civil disputes involving non-Indians:  An assessment of National Farmers Union Insurance Cos. v. Crow Tribe of Indians and a proposal for reform.  20 U.Mich.J.L.Ref. 217 (1986).


LIBRARY REFERENCES


American Digest System


Indians 6(2), 32(11).


Key Number System Topic No. 209.


RESEARCH REFERENCES


ALR Library


89 ALR 5th 195, Construction and Application of Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C.A. §§ 1901 et seq.) Upon Child Custody Determinations.


Treatises and Practice Aids


Federal Procedure, Lawyers Edition § 46:479, Generally.


Federal Procedure, Lawyers Edition § 46:481, Assumption of Exclusive Jurisdiction by Passamaquoddy Tribe or Penobscot Nation.


Federal Procedure, Lawyers Edition § 46:482, Partial Retrocession.


Federal Procedure, Lawyers Edition § 46:483, Petition to Reassume Jurisdiction.


Federal Procedure, Lawyers Edition § 46:485, Approval.


Federal Procedure, Lawyers Edition § 46:486, Disapproval.


NOTES OF DECISIONS


State regulation or control 1

Tribal jurisdiction 2

  

1. State regulation or control


Absent evidence that tribe had reassumed jurisdiction over child custody proceedings, as allowed under Indian Child Welfare Act (ICWA), California state court retained jurisdiction over proceedings to terminate tribal member's parental rights, place allegedly abused child in foster care, and ultimately place child in adoptive home.  Doe v. Mann, N.D.Cal.2003, 285 F.Supp.2d 1229.  Indians  6.6(2)


Indian village had no jurisdiction to decide child custody matters of its Indian children where the village had not successfully petitioned Secretary of Interior to reassume jurisdiction.  Matter of F.P., Alaska 1992, 843 P.2d 1214, certiorari denied 113 S.Ct. 2441, 508 U.S. 950, 124 L.Ed.2d 659. Indians  6.6(2)


Indian Child Welfare Act gives certain states exclusive jurisdiction over matters involving custody of Indian children and requires an Indian tribe petition to United States Department of the Interior for approval of its plan for the handling of child custody proceedings before it may reassume jurisdiction over such matters.  Native Village of Nenana v. State, Dept. of Health & Social Services, Alaska 1986, 722 P.2d 219, certiorari denied 107 S.Ct. 649, 479 U.S. 1008, 93 L.Ed.2d 704.  Indians  6.6(2)


2. Tribal jurisdiction


Alaska native villages were entitled to exercise concurrent jurisdiction with state over child custody determinations, requiring Alaska to give full faith and credit to tribal court adoption decrees under Indian Child Welfare Act, to extent that villages were modern-day successors to historical sovereign bands of native Americans.  Native Village of Venetie I.R.A. Council v. State of Alaska, C.A.9 (Alaska) 1991, 944 F.2d 548, rehearing denied, on remand. Indians  6.10


25 U.S.C.A. § 1918, 25 USCA § 1918


Approved 07-28-05

 

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