Summary. Ten sequences from the threshold jurisdictional facts through ICWA compliance and enforcement.

1. The three threshold facts

  • Where did it happen — a specific address, parcel, or milepost.
  • Is that location Indian country: within reservation exterior boundaries (including rights-of-way and non-Indian fee land), a dependent Indian community, or an unextinguished allotment?
  • Who are the parties — Indian or non-Indian, and if Indian, member of which tribe? (In criminal cases, for both defendant and victim.)
  • What kind of case — criminal or civil; if criminal, is the offense enumerated in the Major Crimes Act?
  • Write all three answers down before researching anything else.

Sources: tribal land/realty office · Bureau of Indian Affairs regional office · county records showing trust or restricted status · the treaty, statute, or executive order establishing the reservation and any claimed diminishment.

2. Statutory overlays

  • Is the state a Public Law 280 state — mandatory, optional, or retroceded?
  • Is the coverage partial — by tribe, geography, or subject matter?
  • Search for tribe-specific federal statutes: restoration acts, settlement acts, land or water settlements, jurisdictional provisions.
  • Check for cross-deputization and cooperative law enforcement agreements.
  • Check for tax, regulatory, or gaming compacts that may supply the operative rule.
  • Check for court-to-court agreements: recognition, transfer protocols, joint jurisdiction courts.

3. Tribal code research

  • Obtain the tribal constitution and code (online, from the clerk, or from tribal legal).
  • Read: jurisdiction provisions · sovereign immunity and waiver authority · procedure · choice of law and the role of custom and tradition · attorney and lay advocate admission · the relevant substantive law.
  • Do not assume state law applies to anything.
  • Identify how custom is proven (elder testimony, tribal historian).

4. Tribal court admission and appearance

  • Begin admission weeks in advance: application, good standing certificate, fee, examination or sponsorship if required.
  • Confirm admission in writing before relying on it.
  • Call the clerk: filing method and fees · standing orders · exhibit handling · whether hearings are recorded and how to obtain a transcript · peacemaking or mediation tracks.
  • Ask about protocol: opening prayer or statement, forms of address, elders, interpretation, dress.
  • Consider local counsel or an experienced lay advocate.
  • Brief the tribal code first; cite state or federal law expressly as persuasive.

5. The exhaustion decision

  • Is tribal court jurisdiction colorable? If so, exhaust tribal remedies first.
  • Litigate jurisdiction in tribal court, on the record, preserving the Montana argument.
  • Do not race to federal court — it usually produces a stay or dismissal.
  • Verify whether a recognized exception applies (bad faith, patent violation of an express jurisdictional prohibition, futility) before relying on one.

6. Sovereign immunity and contracting

  • Assume immunity applies to the tribe and to arms of the tribe.
  • For any agreement, obtain an express, unequivocal waiver covering claims under the agreement.
  • Specify the forum (tribal, state, federal, or arbitration — and if arbitration: rules, seat, arbitrators, and consent to entry of judgment in a named court).
  • Specify the scope: which claims, any monetary cap, and which assets or revenues.
  • Identify every covered entity and successors.
  • Choose the governing law deliberately.
  • Obtain evidence of authority — a resolution of the tribal governing body, attached as an exhibit. An officer's signature alone may be insufficient.
  • Address consent to service; whether tribal remedies must be exhausted; and any tribal court exclusivity provision.
  • Check whether federal approval is required (leases of trust land generally require it).
  • Check whether an existing tribal ordinance governs the subject.

7. Criminal matters

  • Verify Indian country — an element, not an assumption.
  • Verify Indian status of the defendant (and, where relevant, the victim) — an element requiring evidence.
  • Check whether the offense is enumerated in the Major Crimes Act.
  • Check Public Law 280 status for state jurisdiction.
  • Note concurrent state jurisdiction over non-Indian defendants with Indian victims after Castro-Huerta.
  • Note tribal special jurisdiction over non-Indians for domestic and dating violence, protection order violations, and related offenses, with its required defendant protections.
  • Consider separate sovereigns and the General Crimes Act's prior-tribal-punishment exception.
  • Where boundaries were recently confirmed, check whether prior state convictions are vulnerable.

8. ICWA — the compliance sequence

At the first hearing

  • Ask on the record: "Does any party have reason to know this child is or may be an Indian child?"
  • Document the answer in the minute order.

Inquiry

  • Continue inquiry with extended family, not just parents.
  • Gather genealogy: child's name, birthdate, birthplace; parents, grandparents, great-grandparents — names (including maiden names), birthdates, birthplaces; enrollment information.

Notice

  • Send by registered mail, return receipt requested — not certified.
  • To: the parent or Indian custodian · every tribe with a possible connection · the Bureau of Indian Affairs where the tribe cannot be determined.
  • Include the full genealogical information and the nature of the proceeding.
  • Wait the statutory period — at least 10 days after receipt, plus 20 more on request. Do not proceed early.
  • File the notices and return receipts; reference them in the order.

Participation

  • Call the tribe's ICWA director. Ask: eligibility · intent to intervene or transfer · known relative and tribal placements.
  • Note the tribe's right to intervene at any point.
  • Address transfer to tribal court — presumption in favor, absent good cause or a parent's objection.

Evidence

  • Document ACTIVE efforts, not reasonable efforts: services identified, the parent assisted in engaging, the tribe involved, extended family and tribal resources used.
  • Retain a qualified expert witness with knowledge of the tribe's social and cultural standards and childrearing practices.
  • Apply the right standard: clear and convincing for foster placement; beyond a reasonable doubt for termination.

Placement

  • Follow the statutory preferences; check whether the tribe has altered the order by resolution.
  • For any departure, establish good cause on the record — not convenience, not socioeconomic comparison.

9. Judgment recognition and enforcement

  • Protection orders and certain child support and ICWA orders travel by federal full faith and credit.
  • Everything else depends on the destination state's comity rule — check it before relying on the judgment.
  • Obtain a properly authenticated, certified copy.
  • File under the state's registration statute if one exists; otherwise bring an action on the judgment.
  • Be prepared to establish the tribal court's jurisdiction and procedures.
  • For protection orders: carry a certified copy, proof of service, and the tribal court's contact information; register locally and ensure entry in any state registry.

10. Trust land, probate, and cultural resources

  • Verify trust or restricted status before any transaction; expect federal approval requirements for leases and encumbrances.
  • For financing, plan for leasehold mortgage structures with federal approval — ordinary mortgage security does not work the same way.
  • For decedents holding trust interests, open a federal Indian probate with the Bureau of Indian Affairs, separate from state probate.
  • A state-law will alone does not dispose of trust interests.
  • For development near a reservation: contact the tribal historic preservation officer early about cultural resources.
  • Check for off-reservation treaty rights to hunt, fish, and gather, and habitat implications.

11. Consultation

  • Contact the right office: tribal attorney general or legal department · ICWA director · realty office · historic preservation officer · court clerk.
  • Write first, then call.
  • Ask, do not tell — this is government to government.
  • Allow real time; councils meet on schedules.
  • Confirm who has authority to commit the tribe.
  • Follow up in writing confirming what was agreed.

Related documents

Educational only, not legal advice. Federal Indian law is tribe-specific and has changed materially in recent years. Read the tribal code and consult tribal counsel.