Tribal Law Toolkit: Jurisdiction Analysis, Tribal Court Practice, and ICWA Compliance

Summary. Worksheets, letters, and clause language for jurisdiction, tribal court practice, contracting, and child welfare compliance.

Tool 1 — Jurisdiction analysis worksheet

Fact 1 — Location

Fact 2 — Parties

Fact 3 — Case type

Preliminary conclusion: ______________________________

Tool 2 — Indian country determination request

To: [Tribal Realty/Land Office] · [Bureau of Indian Affairs, ___ Regional Office] Re: Request for determination of land status — [parcel description / address / assessor's parcel number]

I request information concerning the jurisdictional status of the above-described property:

1. Whether the property lies within the exterior boundaries of the [Tribe] Reservation;
2. Whether the property is held in trust by the United States, is restricted fee, or is unrestricted fee;
3. Whether the property is an allotment and, if so, whether title has been extinguished;
4. The instrument establishing the reservation boundaries (treaty, statute, or executive order) and any subsequent act claimed to have diminished them;
5. Whether the property lies within a right-of-way through the reservation.

This request is made in connection with [matter]. Please advise of any fee and the expected timeframe.

Tool 3 — Tribal code research log

Tool 4 — Tribal court admission letter

To: Clerk of Court, [Tribe] Tribal Court Re: Application for admission to practice — [name], [state bar and number]

I request admission to practice before the [Tribe] Tribal Court in connection with [matter / generally].

Enclosed: completed application; certificate of good standing from [state]; [fee]; [sponsorship letter from ___, admitted member]; [affidavit as required by Code § ___].

I would appreciate information on: any required examination on tribal law and history and how to prepare; whether local counsel is required; the court's rules of procedure and any standing orders; the filing method and fees; whether hearings are recorded and how a transcript may be obtained; and any protocol I should observe.

Please advise if anything further is required. I am available at [phone] and [email].

Tool 5 — Exhaustion motion outline

Motion to Stay or Dismiss Pending Exhaustion of Tribal Remedies

1. This action concerns [conduct] occurring [in Indian country / arising from a consensual relationship with the Tribe]. 2. The [Tribe] Tribal Court's jurisdiction is at least colorable, because [the conduct occurred on trust land / the parties entered a consensual commercial relationship with the Tribe under (Montana's first exception) / the conduct directly affects the health, welfare, or economic security of the Tribe]. 3. Federal policy supporting tribal self-government requires that the tribal court be afforded the first opportunity to determine its own jurisdiction, with the federal question available afterward. 4. No recognized exception applies: the assertion of jurisdiction is not motivated by a desire to harass or conducted in bad faith; it is not patently violative of an express jurisdictional prohibition; and exhaustion would not be futile because [the tribal court is operating and has procedures for ___]. 5. Relief: stay these proceedings pending exhaustion, or dismiss without prejudice.

Tool 6 — Sovereign immunity waiver clause

§ ___ Limited Waiver of Sovereign Immunity; Dispute Resolution.

(a) Waiver. The Tribe, on behalf of itself and [named enterprises/arms], expressly and unequivocally waives its sovereign immunity from suit solely with respect to claims arising out of or relating to this Agreement, brought by [Counterparty] or its successors.

(b) Forum. Such claims shall be resolved by [binding arbitration administered by ___ under its ___ rules, seated in ___, before ___ arbitrator(s)] and the Tribe consents to the entry of judgment upon any award in [named court(s)], and to the jurisdiction of such court(s) for that purpose. [Or: in the [named] court, and the Tribe consents to the jurisdiction of that court.]

(c) Scope. This waiver extends to [compensatory damages / specific performance / injunctive relief] and is limited to $[amount] and to recovery from [specified revenues, accounts, or assets]. It does not extend to [punitive damages / claims by third parties / the Tribe's ___].

(d) Exhaustion. [The parties waive any requirement to exhaust tribal remedies. / Tribal remedies shall be exhausted as follows: ___.]

(e) Governing law. This Agreement is governed by [___] law.

(f) Service. The Tribe designates [name, address] as its agent for service of process.

(g) Authority. The Tribe represents that this waiver has been authorized by Resolution No. ___ of the [governing body], adopted [date], a certified copy of which is attached as Exhibit ___, and that the signatory is authorized to execute this Agreement on the Tribe's behalf.

A waiver naming no forum is frequently useless. Get the resolution.

Tool 7 — Council resolution request

To: [Tribal Legal Department / Secretary of the ___ Council] Re: Request for certified copy of authorizing resolution — [Agreement], [date]

In connection with the above Agreement, we request a certified copy of the resolution of the [governing body] authorizing (a) the Tribe's entry into the Agreement, (b) the limited waiver of sovereign immunity contained in § ___, and (c) the execution of the Agreement by [signatory, title].

We also request confirmation, under the Tribe's constitution and code, of the body having authority to waive sovereign immunity and of any procedural requirements for such a waiver.

We request this before execution, and we are happy to accommodate the Council's meeting schedule.

Tool 8 — ICWA inquiry script and minute order language

On the record, at the first hearing:

"Before we proceed, I am required to inquire under the Indian Child Welfare Act. Does any party have reason to know that this child is or may be an Indian child — that is, a member of a federally recognized tribe, or eligible for membership and the biological child of a member?

[To each party by name:] Do you have any Native American or Alaska Native ancestry in your family? Has anyone in your family ever been enrolled in, or received services from, a tribe? Do you know of any tribal affiliation on either side?"

Minute order language:

The Court inquired of all parties present regarding the applicability of the Indian Child Welfare Act. [Party] stated []. [Party] stated []. The Court finds [there is / there is not] reason to know that the child is an Indian child. [The Department is ordered to conduct further inquiry of extended family members and to provide notice under 25 U.S.C. § 1912 to [tribes] and to the Bureau of Indian Affairs by registered mail, return receipt requested, and to file proof of such notice.] The inquiry is continuing.

Tool 9 — ICWA genealogy intake form

Also record: prior residences of the family; any tribal services received; any relative who has been enrolled; and the name and contact information of the extended family member who provided the information.

Tool 10 — ICWA notice letter

VIA REGISTERED MAIL, RETURN RECEIPT REQUESTED To: [Tribe], ICWA Designated Agent, [address] · [Bureau of Indian Affairs, ___ Regional Office] Re: Notice of child custody proceeding under the Indian Child Welfare Act — In re [child], Case No. [ ]

1. The proceeding. A [foster care placement / termination of parental rights / preadoptive placement / adoptive placement] proceeding is pending in the [court], Case No. [ ]. The next hearing is scheduled for [date, time, location].

2. The child. [Name; date of birth; place of birth.]

3. Family information. [Attach the completed genealogy intake form.]

4. The Tribe's rights. The Tribe has the right to intervene at any point in the proceeding; to request transfer to tribal court; to examine all documents filed with the court; and to an additional twenty days to prepare upon request. The proceeding will not be held sooner than ten days after receipt of this notice.

5. Contact. [Name, title, telephone, email, address of the agency's ICWA liaison and of the court clerk.]

Enclosures: petition; genealogy form; notice of hearing; [reports on which the proceeding is based].

File the notice and the return receipt. Reference both in the order.

Tool 11 — Active efforts log

Prompts for the "assisted to engage" column: transportation arranged · appointment scheduled with the parent · accompanied to the first session · barriers identified and addressed · services selected in consultation with the tribe · culturally appropriate provider used · tribal program used · relatives identified and engaged.

Tool 12 — Qualified expert witness engagement

You are engaged as a qualified expert witness under the Indian Child Welfare Act.

Qualifications sought: knowledge of the social and cultural standards and childrearing practices of the [Tribe]; [designation by the Tribe as knowledgeable]; [substantial experience in the delivery of child and family services to Indians]; [knowledge of tribal customs pertaining to family organization].

Opinion requested: whether continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child, and the basis for that opinion, including the cultural context.

Please state the materials reviewed, your contacts with the Tribe, and your qualifications. Please advise promptly if your opinion would not support the petition.

Tool 13 — Placement preference and transfer tools

Placement preference worksheet

• Has the tribe altered the order by resolution?
• If departing from the preferences, good cause established on the record, with reasons that are not convenience or socioeconomic comparison.

Transfer motion outline

The [Tribe] moves to transfer this proceeding to the [Tribe] Tribal Court under 25 U.S.C. § 1911(b). The child is an Indian child; the child is not domiciled on the reservation; the Tribe accepts transfer by [resolution/order of the tribal court, attached]; no parent has objected; and no good cause exists to deny transfer. Transfer serves the child's interest because [tribal placement resources; the family's location; the Tribe's programs].

Tool 14 — Protection order enforcement packet

• Certified copy of the tribal protection order
• Proof of service on the respondent
• Tribal court contact information and clerk's telephone number
• A one-page cover sheet citing the federal full faith and credit requirement for protection orders
• Registration with the local court in the new jurisdiction, if available
• Confirmation of entry in the state protection order registry
• Copies for: local law enforcement · employer or school security · the petitioner's own file

If told a tribal order is not enforceable: ask for a supervisor and provide the cover sheet. This is usually a training gap, not a legal question.

Tool 15 — Comity petition outline (non-protection-order judgments)

1. The [Tribe] Tribal Court entered judgment on [date] in [case], a certified copy of which is attached. 2. The tribal court is a court of competent jurisdiction established under the Tribe's constitution and code [attached], with [describe: law-trained judges, published code, appellate review]. 3. The defendant received notice and an opportunity to be heard, as shown by [service records, appearance, transcript]. 4. The proceedings comported with due process, including [notice, counsel, a hearing, a written decision, appellate review]. 5. The judgment is final and not subject to further appeal. 6. Recognition is consistent with the public policy of this state, and [this state has adopted a reciprocal recognition statute / rule, at ___]. 7. Relief: recognition and enforcement of the judgment.

Tool 16 — Consultation and cultural resources letters

Government-to-government consultation

To: [Chairperson / Council / Tribal Legal Department], [Tribe] Re: Request for consultation — [project/matter]

[Entity] is [describing the project or matter, its location, and its timeline]. We are writing to request consultation with the Tribe regarding [specific subjects: land status, cultural resources, treaty-secured rights, jurisdictional questions, service delivery].

We recognize the Tribe's status as a sovereign government and are seeking the Tribe's views before decisions are made. We can meet at the Tribe's convenience and will accommodate the Council's schedule. Our timeline provides until [date], and we can extend it if needed.

Please advise whom we should contact and what information would be useful. [Contact, telephone, email.]

Cultural resources inquiry

To: [Tribal Historic Preservation Officer], [Tribe] Re: [Project], [location] — request for consultation on historic and cultural properties

[Description of the undertaking, the area of potential effect, and the timeline.] We request the Tribe's views on whether historic properties or properties of religious and cultural significance may be affected, and on appropriate survey methodology, monitoring, and treatment of inadvertent discoveries.

We can provide: [maps, survey reports, project plans]. We are prepared to enter a monitoring agreement and an inadvertent discovery plan. Please advise on the Tribe's process and any fee for review.

Related documents

• Tribal Law and Indian Country Jurisdiction
• Working with Tribal Law and Tribal Courts
• Indian Country Jurisdiction and ICWA Checklist
• Domestic Violence Response Toolkit
• Estate Administration Toolkit
• Administrative Practice Toolkit

Templates are starting points, not filings. Federal Indian law is tribe-specific. Read the tribal code and consult tribal counsel before using any of this.