Family Law and Indigenous Peoples' Rights

Life changes like marriage, adoption, and divorce often create legal issues. However, different laws may apply when one of the people involved is Native American. It may involve a complex mix of state, federal, and tribal laws. 

This article explains some of the ways that Indigenous law affects family law cases. This unique legal situation can make even simple family law issues complicated. Contact a family law attorney near you. When searching for a family law attorney, ask about their experience working cases involving indigenous families.  

What Are Common Family Law Issues in Indigenous Families?

Native families go through the same joys and challenges as other families. However, compared to whites, Native Americans are more likely to divorce or owe child support. Native American families are more likely to be part of the child welfare system. 

What Are the Unique Challenges Native American Families Face in Family Law? 

Native families face many hurdles in the family law system. These include: 

• The failure of traditional courts to understand Native cultural practices and family structures 
• A lack of Native American attorneys 
• Courthouses that are hostile to Native people 
• A well-founded mistrust of America’s legal system, especially in family law matters 
• Explicit and implicit biases displayed by judges and other court personnel

Which Courts Can Decide Family Law Issues Involving Native Families? 

Indigenous nations are self-governing entities with their own laws and courts. Federal law attempts to direct certain family cases to state courts and others to tribal courts. However, the lines are far from clear. Knowing which court should hear a case is crucial in Native American family law cases. Lawyers call this decision-making authority jurisdiction. Jurisdiction also determines which laws will apply to the case.

A tribal court may have jurisdiction if a child or adult is an enrolled member of an Indigenous nation and lives on that nation’s land. But there are exceptions to this rule, so it’s best to ask an experienced lawyer. 

Are There Special Legal Issues in Native American Divorces? 

Yes. For example, in most divorces, the court divides the marital property equally. However, this rule does not apply to Native land. When a Native person divorces a non-Native, any Native land must be excluded from the divorce settlement. 

Does Child Support Change When One Parent is Native American?

Child support in Indigenous communities can be complex. First, there are enforcement issues. The principles of Native self-governance can make it difficult to enforce outside child support orders on tribal lands. It’s possible if the Native nation’s laws allow for garnishment or other collection methods, but this is not guaranteed. 

Tribal courts have wide latitude in creating child support awards that care for children in creative ways. A tribal court might order an unemployed father who is a skilled hunter to bring his child a certain amount of meat each month. 

Are There Any Special Laws for Child Custody and Child Protection Cases Involving Indigenous Children? 

Yes. From the 1880s to the 1960s, state and federal governments actively removed Native children from their homes. The children were placed in horrific boarding schools or adopted by white families. 

In the 1970s, Native activism and advocacy exposed the harm caused by these practices. Congress responded by passing the Indian Child Welfare Act (ICWA) of 1978. The ICWA makes it harder to remove Native children from their homes. 

Which Children Does the ICWA Protect? 

The ICWA applies to any custody action involving an “Indian child.” An Indian child is any unmarried minor who is an enrolled member of a federally recognized Native American nation or who is eligible for membership.

When Does the ICWA Apply?  

The ICWA applies in proceedings where a non-parent might take custody of a Native child. These include: 

• Foster care placements
• Proceedings to terminate parental rights
• Adoptions and pre-adoptive placements

How Does the ICWA Protect Native Families and Children? 

At least three provisions of the ICWA make it harder to remove Native children from their homes. 

First, the ICWA contains placement preferences. In ICWA adoptions and foster care placements, courts must give priority to the Native child’s extended family members. Courts may also consider other members of the child’s nation or foster homes approved by the nation. 

Second, the ICWA makes terminating parental rights difficult. In non-ICWA cases, a court can terminate a parent’s rights if it finds that doing so is in the best interests of the child. However, the ICWA forbids termination unless expert testimony proves that allowing the child to remain in the home will cause serious emotional or physical harm.

Finally, the ICWA requires child welfare agencies to actively help parents keep or regain their parental rights. Active efforts may include personal or family services, such as substance use treatment, counseling, and financial help. The agency must prove that these efforts failed before terminating the parent’s rights.  

Do You Need Help Understanding the Family Law Rules for Native Families? 

Dealing with family law issues can be difficult. The laws that protect the rights of Indigenous peoples add complexity to these issues. If you need help navigating the unique family law concerns facing Native families, use the LawInfo directory to find an attorney who understands family law.