Legal Question in Native American Law in California

Tribal Law and custody

I am pregnant and the father is native american (Paiute-Shoshone). The fathers family is urging me to get an abortion and if I have the baby they are threatening that they will have more right over the child based on his native american blood and they want to take my child from me. What I want to know is are they allowed to do that and how much standing do they have?

Asked on 1/05/09, 7:52 pm

2 Answers from Attorneys

Joel Selik

Re: Tribal Law and custody

I am sorry I do not know the answer to your question; I hope an attorney who is an expert in Native American Family Law will respond. If not, I urge you to see an attorney who is an expert in that specific area; I am farmilar enough to know it can be very tricky.

Read more
Answered on 1/05/09, 7:56 pm
Bryan Whipple Bryan R. R. Whipple, Attorney at Law

Re: Tribal Law and custody

There has been a ton of litigation about this general subject, and I certainly do not proclaim myself to be an expert on what it all means and how your particular case might be decided. However, I have done a little research, and it leads me in the direction of believing:

(1) Tribal law and tribal courts will not have jurisdiction;

(2) The Federal "Indian Child Welfare Act" will not apply.

My hunch is based on skimming the U.S. Supreme Court's decision in a case entitled Mississippi Band of Choctaw Indians v. Holyfield, decided in 1989 and published at 490 U.S. 30 and 109 S.Ct. 1597.

In this case, the Supreme Court held that the domicile of an illegitimate child is that of its mother.

Therefore, if you are not living on a reservation or other "Indian country" and were not accustomed to living there, the child will not be subject to the Indian Child Welfare Act or be subject to tribal jurisdiction.

I have to add that this is based on very limited research and is intended only to give you an initial counter-argument against the father's family.

If push comes to shove, you certainly need experienced Indial Law counsel.

Read more
Answered on 1/06/09, 12:43 am

Related Questions & Answers

More Native American Law questions and answers in California