Summary. Answer the three questions first, read the tribal code, exhaust where jurisdiction is colorable, put the waiver in the contract, and ask the ICWA question at the first hearing.

For the doctrine — Indian country, the criminal grid, Montana, immunity, ICWA — see Tribal Law and Indian Country Jurisdiction. This guide is what to do.

The organizing rule: do not analyze until you have the three facts, and do not assume state law applies to anything.

Step 1: The three questions, before anything else

1. Where did it happen? Precisely. A street address, a parcel, a milepost.

Then determine whether that location is Indian country: within the exterior boundaries of a reservation (including rights-of-way and land owned in fee by non-Indians), a dependent Indian community, or an Indian allotment whose title has not been extinguished.

How to find out: the tribe's own land office or realty office; the Bureau of Indian Affairs regional office; county records showing trust or restricted status; and, for reservation boundaries, the treaty, statute, or executive order that established the reservation and any later act said to have diminished it.

2. Who are the parties? For each: Indian or non-Indian, and if Indian, a member of which tribe. In a criminal case this must be established for both the defendant and the victim. Membership is determined by the tribe, and the tribe is the only authoritative source.

3. What kind of case is it? Criminal or civil. If criminal, whether the offense is enumerated in the Major Crimes Act.

Write the three answers down before you research anything else. Every subsequent question depends on them, and the most common error in this field is analyzing before establishing them.

Step 2: Check Public Law 280 and any tribe-specific statute

Is the state a Public Law 280 state? Mandatory states, optional states that assumed jurisdiction, and states that later retroceded all exist, and coverage can be partial — by tribe, by geography, or by subject matter.

Then check for tribe-specific legislation. Congress has enacted statutes addressing particular tribes and particular reservations — restoration acts, settlement acts, land claims settlements, and jurisdictional statutes. A general answer can be wrong for a specific tribe because of a statute nobody thought to look for.

And check for cross-deputization or cooperative agreements between tribal, state, county, and federal law enforcement, which govern who responds and who charges in practice even where the formal allocation is clear.

Step 3: Read the tribal code

This is the governing law, and skipping it is the error that most reliably produces bad advice.

Where to find it: many tribal codes are published online; others are available from the tribal court clerk, the tribe's legal department, or a tribal law repository. Ask the clerk.

What to look for:

  • Jurisdiction provisions — what the tribe asserts, over whom, and in what matters.
  • Sovereign immunity — whether the tribe has waived, by whom, and how.
  • Procedure — pleading, service, deadlines, discovery, motions, and hearings.
  • Choice of law — whether the code adopts state or federal law as a gap-filler, and where custom and tradition enter.
  • Admission requirements for attorneys and lay advocates.
  • Substantive law in the relevant area, which may differ materially from state law in family, property, probate, and employment matters.

And ask about custom. In many tribal courts, custom and tradition are a genuine source of decision, provable through elder testimony. A lawyer who treats custom as ceremonial will be outmatched by an advocate who does not.

Step 4: Get admitted, early

Tribal court admission is separate from any state bar. Typical requirements: an application, proof of good standing elsewhere, a fee, sometimes a tribal bar examination on tribal law and history, sometimes sponsorship by an admitted member, and sometimes local counsel.

Start weeks before you need it. Admission is not same-day, and appearing without it is a problem you cannot fix at the podium.

Call the clerk. Tribal court clerks are generally accessible and are the single fastest source on how the court actually operates — filing, scheduling, protocol, and local expectations.

Step 5: Decide where to file, and whether to exhaust

If you are considering federal or state court because you doubt tribal jurisdiction: stop, and check exhaustion. Where tribal court jurisdiction is colorable, federal courts generally require the tribal court to determine its own jurisdiction first. Racing to federal court is expensive and usually produces a stay or dismissal.

Exceptions exist — assertions of jurisdiction motivated by a desire to harass or conducted in bad faith, actions patently violative of express jurisdictional prohibitions, and futility — but they are narrow. Do not rely on one without careful analysis.

If you are the plaintiff, ask whether tribal court is actually better for you: it may be faster, closer, and more familiar with the facts and the parties, and the judgment may be enforceable where you need it.

If you are a non-Indian defendant in tribal court, litigate jurisdiction there first, on the record — preserving the Montana argument and the federal question for later review.

Step 6: Contracting with a tribe or tribal entity

The waiver clause is the most important clause in the agreement. Without an express waiver, sovereign immunity may leave you with no remedy at all, including for straightforward nonpayment.

A waiver that works has six elements:

  1. Express and unequivocal language waiving sovereign immunity for claims arising out of the agreement.
  2. The forum — tribal court, state court, federal court, or arbitration. If arbitration: the rules, the seat, the number of arbitrators, and consent to entry of judgment on the award in a named court.
  3. The scope — which claims, and whether limited to specified assets, revenues, or a monetary cap.
  4. Coverage of the right entities — the tribe, named arms and enterprises, and successors.
  5. Governing law, chosen deliberately.
  6. Evidence of authority — a resolution of the tribal governing body authorizing the waiver, in the form tribal law requires. A manager's signature is not enough if the code requires council action.

Also address: consent to service of process; whether tribal remedies must be exhausted first; whether the arbitration award may be enforced against specified assets; and — where relevant — the effect of any tribal court exclusivity provision.

And do the diligence: who has authority under the tribal constitution and code; whether federal approval is required for the transaction (leases of trust land generally require it); and whether an existing tribal ordinance already governs the subject.

Step 7: The ICWA sequence, from the first hearing

At the first hearing, on the record, every time:

"Does any party have reason to know that this child is or may be an Indian child?"

Then:

  1. Continue the inquiry with extended family, not just the parents. A parent may not know, or may not say.
  2. Send notice by registered mail with return receipt to the parent or Indian custodian, and to every tribe with a possible connection, and to the Bureau of Indian Affairs where the tribe cannot be determined. Registered mail, not certified.
  3. Include what the tribe needs to determine membership: the child's name, birthdate, and birthplace; the names, birthdates, and birthplaces of parents, grandparents, and great-grandparents where known, including maiden names; and any tribal enrollment information.
  4. Wait the statutory period — at least ten days after receipt, with an additional twenty available on request. Do not proceed early.
  5. Put the return receipts and the notices in the file, and reference them in the minute order.
  6. Call the tribe's ICWA director. They are the best source on family, placement, and the tribe's preferences — and treating the tribe as a participant rather than as an addressee changes outcomes.
  7. Document ACTIVE efforts, not reasonable efforts. Affirmative, thorough, culturally appropriate: identifying services, helping the parent engage with them, involving the tribe, and using extended family and tribal resources. Write down what was actually done, not what was referred.
  8. Retain a qualified expert witness with knowledge of the tribe's social and cultural standards and childrearing practices — not merely a clinician.
  9. Apply the right standard: clear and convincing for foster placement, beyond a reasonable doubt for termination.
  10. Follow the placement preferences, and if departing, establish good cause on the record with reasons that are not convenience or socioeconomic comparison.
  11. Address transfer. The tribe may seek transfer to tribal court; the presumption favors it absent good cause or a parent's objection.

This costs one question and one letter at the start, and it prevents a judgment being unwound years later.

Step 8: Getting a tribal judgment recognized

Some tribal orders travel by federal statute — protection orders, and certain child support and ICWA-related orders — and are entitled to full faith and credit.

Everything else runs on comity, state by state. Some states have adopted reciprocal recognition statutes or court rules; others apply general comity principles requiring notice, an opportunity to be heard, a competent tribunal, and consistency with public policy.

Practical steps:

  1. Check the destination state's rule first, before relying on a tribal judgment.
  2. Obtain a properly authenticated copy with the court's certification.
  3. File under the state's procedure — a registration statute where one exists, otherwise an action on the judgment.
  4. Be ready to establish the tribal court's jurisdiction and its procedures, since comity review often examines both.
  5. For protection orders, invoke the federal full faith and credit provision expressly, and provide a certified copy.

Step 9: Consulting with a tribe

Whether you represent a company, a county, an agency, or a family, the most useful thing you can do is talk to the tribe early and properly.

Who to contact: the tribal attorney general or legal department; the ICWA director for child welfare matters; the realty or land office for land questions; the tribal historic preservation officer for cultural resource questions; and the tribal court clerk for procedure.

How to do it well:

  • Write first, then call. A short letter identifying the matter, the connection to the tribe, and what you are asking gets a better response than a cold call.
  • Ask, do not tell. The tribe is a government. Consultation is between governments, not a courtesy notification.
  • Give real time. Tribal councils meet on schedules; a request that requires council action needs weeks.
  • Understand who speaks. The council speaks for the tribe; a department director speaks for the department. Confirm authority before relying on a commitment.
  • Follow up in writing and confirm what was agreed.

And expect that the tribe knows more than you do about its own law, which is not a difficulty but the point of asking.

A note before you start

Two attitudes make this field harder than it needs to be, and both are common.

The first is treating tribal law as a curiosity — an exotic overlay on the real law, to be handled by finding the nearest state-law analogue. It is not an overlay. It is the law of a separate sovereign, and a lawyer who approaches a tribal code the way they would approach a homeowners association's bylaws will give bad advice and be embarrassed in front of a judge.

The second is the opposite — treating the field as so specialized that no one outside it should touch anything. That is also wrong, and it produces the failure that matters most: a state court practitioner who does not ask the ICWA question because they assume it is somebody else's field, and a family that loses a case for want of a letter.

The realistic middle: the jurisdictional analysis is learnable and mechanical. The three questions take an hour. Reading a tribal code takes an afternoon. Calling a tribal legal department takes ten minutes and is welcomed. What requires a specialist is the hard case — a disestablishment argument, a complex immunity question, a contested transfer — and knowing that you have one is itself most of the skill.

And a practical courtesy that pays. Tribes are governments with limited staff and a long history of being consulted after decisions were made. A lawyer who writes early, asks rather than tells, gives real time, and follows up in writing gets better information, faster, than one who calls the day before a hearing. This is not diplomacy for its own sake; it is how you find the placement, the record, the resolution, or the answer that resolves the case.

Six matters, worked through

A county caseworker with a dependency petition

Day one: file the petition, and at the first hearing ask the inquiry question on the record. Document the answer in the minute order, whatever it is.

If any party says maybe: send notice by registered mail, return receipt, to every tribe with a possible connection and to the Bureau of Indian Affairs, with the full genealogical information — child, parents, grandparents, great-grandparents, with maiden names and birthplaces. Wait the statutory period.

Then call the tribe's ICWA director before the next hearing. Ask three things: does the tribe consider the child eligible; does the tribe intend to intervene or seek transfer; and does the tribe know of relative or tribal placements. That call frequently produces a placement nobody in the county knew existed.

Then document ACTIVE efforts — what services were identified, how the parent was helped to engage with them, what the tribe provided, and what extended family was contacted. A referral log is not active efforts documentation.

And retain the qualified expert early. Finding someone with knowledge of the tribe's social and cultural standards takes time, and the tribe can often recommend one.

A hospital contracting with a tribal health authority

Before any signature: determine who has authority to bind the tribe, whether federal approval is required, whether an existing tribal ordinance governs, and whether the entity is an arm of the tribe carrying immunity.

In the agreement, insist on: an express, unequivocal waiver of sovereign immunity for claims under the agreement; a named forum; the scope of the waiver and any monetary cap; identification of the entities covered; governing law; consent to service; and a copy of the tribal council resolution authorizing the waiver, attached as an exhibit.

What to avoid: a waiver that names no forum (unenforceable in practice); a waiver limited to "tribal remedies" without knowing what those are; and reliance on an officer's representation of authority without the resolution.

And a note on the other side of the table. Tribes have entirely legitimate reasons to limit waivers — immunity protects governmental assets and programs from commercial risk. A limited, well-drafted waiver naming a forum and a cap is usually achievable and is better for both parties than a fight about whether anything was waived at all.

A criminal defense lawyer with a client charged federally

The client is charged in federal court with an offense committed on a reservation.

First, verify Indian country. The location must be within reservation boundaries, a dependent Indian community, or an allotment. If it is not, federal jurisdiction under the Major Crimes Act fails.

Second, verify Indian status. This is an element, not a formality — generally requiring some degree of Indian blood and tribal or federal recognition as an Indian, established by evidence rather than assumption. Contest it where the evidence is thin, particularly for descendants who are not enrolled.

Third, check the charge against the enumerated list. The Major Crimes Act reaches specified offenses; an offense outside the list against an Indian victim by an Indian defendant may be exclusively tribal.

Fourth, consider double jeopardy carefully. Tribal and federal prosecutions are separate sovereigns. A tribal conviction does not bar a federal one, though the General Crimes Act contains an exception for an Indian already punished by the tribe.

Fifth, watch for the post-McGirt posture in affected areas, where jurisdiction may have been misallocated for years and prior state convictions may be vulnerable.

A tribal member seeking to enforce a protection order in another state

This is one of the clearest rules in the field. Federal statute requires full faith and credit for a valid tribal protection order, and the enforcing jurisdiction may not require registration as a condition of enforcement, though registration is often practically useful.

What to carry: a certified copy of the order, proof of service on the respondent, and the tribal court's contact information.

What to do on arrival in a new state: register it with the local court if the state provides for registration, give a copy to local law enforcement, and — where the state maintains a protection order registry — ensure it is entered.

If an officer says a tribal order is not enforceable, ask for a supervisor and cite the federal full faith and credit provision. This is a training gap rather than a legal question, and it is common. See Obtaining and Defending a Protective Order.

An estate with trust land

A will alone does not dispose of trust interests. Trust and restricted interests pass through a federal probate system administered by the Department of the Interior, with its own rules on who may inherit, how interests may be devised, and what happens to very small fractional interests.

What the family should do:

  1. Separate the estate into two parts: trust and restricted interests (federal probate), and everything else (state probate).
  2. Notify the Bureau of Indian Affairs agency serving the decedent's tribe and request the probate file be opened.
  3. Gather the death certificate, tribal enrollment information, family genealogy, a list of trust interests, and any will — including a will prepared under the federal system's requirements.
  4. Expect it to take a long time. Federal Indian probate is slow, and fractionated interests make it slower.
  5. Address fractionation — consolidation programs and purchase options exist and are worth asking about.

See Administering an Estate.

A developer looking at a project near a reservation

Three questions, early.

Is any part of the site Indian country, trust land, or allotted land? Check with the tribe's realty office and the Bureau of Indian Affairs, not only the county recorder. A parcel's jurisdictional status is not always apparent from the deed.

Are there cultural resources? Federal and often state law require consideration of historic and cultural properties, and the tribal historic preservation officer is the right contact. Consult early, because a discovery mid-construction is far more expensive than a survey beforehand.

Are there treaty rights implicated? Off-reservation rights to hunt, fish, and gather at usual and accustomed places, and the habitat that supports them, are enforceable and have stopped projects.

And the general advice: approach the tribe as a government with an interest, early, in writing, with real time to respond. A project that consults at the beginning is frequently supported; one that consults after permits are filed is frequently opposed.

Researching this field without getting it wrong

The materials are not where a lawyer's habits point, and the habits produce errors.

Start with the tribe, not with a treatise. The tribal constitution and code are the governing law. Many are online; the rest are available from the court clerk or the tribe's legal department. Read the jurisdiction, immunity, and procedure provisions first.

Then the tribe-specific federal law. Congress legislates about particular tribes constantly — restoration acts, land settlements, water settlements, jurisdictional statutes, and reservation-specific provisions. A general rule can be displaced by a statute about one reservation, and finding it requires searching by tribe name rather than by topic.

Then the treaty, if there is one. Treaties are federal law, enforceable, and construed as the signatories would have understood them. The text is available and it decides cases.

Then federal case law, remembering that this is a field where circuit splits are common and where the law changed materially in the last five years — McGirt, Castro-Huerta, and Brackeen each reallocated something. Verify that a case you are relying on has not been overtaken.

Then tribal case law, which exists in real volume for larger tribal judiciaries and is persuasive or controlling depending on the forum.

And use the practitioner infrastructure: the federal Indian law treatise that courts cite; the tribal court clearinghouses maintained by law schools; state ICWA benchbooks and court improvement programs, which are practical and free; and the Bureau of Indian Affairs regional offices.

Three research errors to avoid:

  1. Assuming the general rule applies without checking for a tribe-specific statute.
  2. Citing state law as controlling in a tribal forum.
  3. Relying on pre-2020 authority for jurisdictional questions without confirming it survived.

And one habit worth adopting: when in doubt, call the tribe's legal department and ask. It is not an adversarial act to ask a government about its own law, and the answer is faster and better than three days of research.

Appearing in tribal court: a practical brief

Two weeks out:

  1. Complete admission. Application, good standing certificate, fee, examination or sponsorship if required. Confirm in writing that you are admitted before you rely on it.
  2. Read the court's rules and the code's procedure title. Pleading requirements, service, deadlines, motion practice, discovery scope, evidence rules — none of which will match your state's by default.
  3. Call the clerk. Ask about: filing method and fees; whether the judge has standing orders; how exhibits are handled; whether hearings are recorded and how to get a transcript; and whether there is a peacemaking or mediation track this case would go to.
  4. Ask about protocol. Whether proceedings open with a prayer or statement; forms of address; whether elders may be present or may speak; whether interpretation is used; and whether there are expectations about dress or seating.
  5. Identify local counsel or a lay advocate where useful. Experienced lay advocates in tribal courts are often more knowledgeable about the tribe's law than a visiting attorney, and courts respect them.

In your briefing:

  • Lead with the tribal code. Cite it the way you would cite a statute in state court: by section, quoted, applied.
  • Address custom and tradition where the code makes them a source. If you do not know the custom, say so and ask the court's guidance rather than ignoring it.
  • Cite state or federal law as persuasive, expressly framed that way — not as though it controls.
  • Address jurisdiction affirmatively if you are challenging it, on the record, preserving the Montana argument for later review. Preserve it; do not skip it.
  • Keep it short. Many tribal courts prefer concise, plain briefing to extended argument.

At the hearing:

  • Arrive early, dressed as you would for any court.
  • Do not signal that this is a lesser forum. It is remembered, and the judge will see you again.
  • Address the court as the code and local practice direct.
  • If a peacemaking or elder process is offered, take the offer seriously rather than treating it as an obstacle to the real proceeding.
  • Preserve objections on the record, and confirm how the record is being made.

Afterward:

  • Obtain the order in certified form if you may need to enforce it elsewhere.
  • Check the destination state's recognition rule before assuming a tribal judgment is portable — protection orders and certain support and ICWA orders travel by federal statute; the rest depend on comity.

For the tribal member on the other side of all this

Most of this guide is written for practitioners. Here is the same material from the perspective of a person whose case has a tribal dimension.

You may have a choice of forum, and it matters. Depending on the case, tribal court, state court, or federal court may be available. Tribal court is frequently faster, closer, cheaper, and staffed by people who understand the community — and its judgments travel for protection orders and certain support and child welfare orders. Ask about it rather than assuming state court is the default.

Your tribe's legal department may help you, or tell you who will. Many tribes provide legal services or maintain lists of practitioners admitted in the tribal court. Legal aid programs serving tribal communities exist in most regions, and law school Indian law clinics take cases.

In a child welfare case, tell the court immediately that you are a tribal member or that your child may be eligible for membership, and give the caseworker your family's genealogical information. The tribe cannot help if it is not notified, and the notice obligation is triggered by information you can supply in five minutes.

Contact your tribe's ICWA director yourself. You do not have to wait for the county to do it. They can intervene, seek transfer, identify relative placements, and advocate for you in a proceeding where you may otherwise be alone.

In a criminal case in state court, tell your lawyer where the conduct occurred and that you are a tribal member. Jurisdiction may be defective, and it is a question your lawyer may not think to ask.

If you have a protection order from a tribal court, it is enforceable across state lines by federal law. Carry a certified copy and give one to local law enforcement wherever you go.

If someone is asking you to sign a contract with a waiver of tribal immunity, and you are signing for the tribe or an enterprise, confirm you have authority under the tribal code — usually a council resolution. Signing without it may be ineffective, or may expose you personally.

And if you are told a tribal court order or a tribal document "doesn't count" somewhere — by an officer, a clerk, an employer, or a school — ask for a supervisor and ask for the legal basis in writing. A great deal of the friction in this field is unfamiliarity rather than law.

Cross-jurisdictional coordination that actually works

Where authority is divided, the practical answer is usually an agreement rather than a lawsuit. Four kinds are worth knowing about.

Cross-deputization agreements. Tribal, county, state, and federal officers are commissioned to enforce each other's laws within defined areas, so the officer who arrives first can act regardless of who the parties turn out to be. These agreements resolve the day-to-day version of the jurisdictional grid, and where one exists, it is the first document to read in any law enforcement question.

Cooperative law enforcement and dispatch arrangements, which determine who responds, how calls are routed, and where a person is booked.

Tax and regulatory compacts. Tribes and states negotiate agreements on fuel, tobacco, sales, and other taxes; on gaming under a tribal-state compact; and on regulatory subjects from environmental standards to child support enforcement. These agreements often supply the operative rule in an area where the constitutional answer is contested and neither side wants to litigate it.

Court-to-court agreements. Reciprocal recognition of judgments, transfer protocols in child welfare cases, shared jury pools, and joint jurisdiction courts — including collaborative wellness and family courts operated jointly by a tribe and a state.

Why this matters to a practitioner. In a matter with a tribal dimension, the operative rule may not be in any statute or case. Ask, early, whether an agreement covers this — the tribal legal department, the county attorney, or the tribal court clerk will know. It is common for a question that looks like a difficult jurisdictional problem to have been resolved years ago by a memorandum of understanding sitting in a drawer.

And where no agreement exists, that is frequently the useful long-term recommendation to a client on either side: negotiate one. Litigation over jurisdiction is expensive, slow, and produces a result neither government controls; an agreement produces a result both can live with and can amend.

Twelve mistakes

  1. Analyzing before establishing the three facts — where, who, and what kind of case.
  2. Assuming land owned in fee by a non-Indian inside a reservation is not Indian country. It is.
  3. Forgetting to check whether the state is a Public Law 280 state, and whether coverage is partial.
  4. Missing a tribe-specific federal statute that displaces the general rule.
  5. Never reading the tribal code, and advising as though state law applies.
  6. Racing to federal court without exhausting tribal remedies where jurisdiction is colorable.
  7. Signing a contract with a tribal entity with no immunity waiver — or with a waiver naming no forum.
  8. Accepting an officer's signature on a waiver without the council resolution authorizing it.
  9. Not asking the ICWA question at the first hearing.
  10. Sending ICWA notice by certified rather than registered mail, or proceeding before the waiting period runs.
  11. Documenting "reasonable efforts" in a case that requires active efforts.
  12. Assuming a tribal judgment is portable without checking the destination state's recognition rule.

The one-page version

  • Three questions first: where did it happen, who are the parties, what kind of case.
  • Indian country includes non-Indian fee land inside reservation boundaries, rights-of-way, dependent Indian communities, and allotments.
  • Check Public Law 280, tribe-specific statutes, and cross-deputization agreements.
  • Read the tribal code. It is the governing law, and custom may be a source of decision.
  • Get admitted early. Call the clerk.
  • Exhaust tribal remedies where jurisdiction is colorable.
  • The immunity waiver is the most important clause in any contract with a tribe: express, forum-specific, scoped, covering the right entities, with a council resolution attached.
  • Ask the ICWA question at the first hearing, send notice by registered mail with return receipt, wait the statutory period, call the tribe's ICWA director, and document active efforts.
  • Protection orders travel by federal statute; other tribal judgments depend on comity.
  • Consult the tribe early, in writing, government to government.

Building a working relationship with a tribe

Lawyers who do well in this field are the ones who have relationships before they need them. Four practical investments.

Learn the specific tribe, not "tribal law." There are hundreds of tribal governments with different constitutions, codes, courts, histories, and economies. What is true of one is frequently false of another. Read the tribe's own website, its constitution, and its code before the first call, and know the difference between the tribal council, the executive, and the court.

Introduce yourself before you have a matter. A short letter to the tribal legal department, or attendance at a tribal court bar meeting or a continuing education program hosted by the tribe, costs a morning and changes every subsequent interaction. Tribal legal departments are small, they see the same outside lawyers repeatedly, and they remember who arrived respectfully.

Learn the protocol, and follow it without irony. Meetings may open with a prayer or a statement. Elders may be present and may speak. Introductions may include where you are from and who your people are. Interpretation may be used. None of this is ceremony to be endured; it is how the proceeding is conducted, and a lawyer who treats it as an obstacle has already lost the room.

Understand the timeline. Councils meet on schedules, resolutions require agenda placement, and consultation is genuinely a process rather than a notification. A request that needs council action needs weeks, sometimes months. Building that into your client's schedule at the outset prevents the situation in which you are asking a government to act on your emergency.

And one more thing worth saying plainly. The most common complaint tribal legal departments make about outside counsel is not hostility. It is the assumption that tribal law is a simplified version of state law, that the tribal court is a lesser forum, and that a phone call the day before a hearing is adequate consultation. None of that is true, all of it is visible, and correcting it costs nothing but attention.

Frequently asked questions

What is the first thing to determine? Where it happened, who the parties are, and what kind of case it is. Nothing can be answered before those three.

Does state law apply on a reservation? Usually not, and assuming it does is the most common error. Public Law 280 changes the criminal answer in some states; Montana governs civil authority over nonmembers.

Can I sue a tribe for breach of contract? Only with an express waiver of sovereign immunity or congressional abrogation. Put the waiver — with forum, scope, and evidence of authority — in the contract.

Do I have to file in tribal court first? Where tribal jurisdiction is colorable, exhaustion is generally required. Do not race to federal court.

When does ICWA apply? Foster placement, termination of parental rights, and preadoptive and adoptive placement involving an Indian child. Not custody disputes between parents in a divorce.

Will a tribal judgment be enforced in state court? Protection orders and certain support and ICWA orders, by federal statute. Everything else depends on the state's comity rule — check it first.

Related documents

Educational only, not legal advice. Federal Indian law is intricate and tribe-specific. Read the tribal code and consult tribal counsel before advising on any matter with a tribal dimension.