C. Tribal and State Jurisdiction

Whether the state court or Tribal court has jurisdiction over a case involving an “Indian child” depends on where the child resides, whether transfer to the Tribal court is requested, and whether an exception to the mandatory transfer provision applies. If a case involves an “Indian child,” however, the state court proceedings must comply with ICWA, whether or not the Tribe intervenes or the case is transferred to a Tribal court. Please see Placement Preferences Section below for more information on when ICWA applies.

1. Exclusive Jurisdiction on the Reservation

If the child's residence or domicile is on the reservation, or if the child has been made a ward of the Tribal court, the Tribal court has exclusive jurisdiction, except when jurisdiction is otherwise vested in the state. 25 U.S.C. § 1911(a).

2. Emergency Exception

When an “Indian child” who resides on a reservation is temporarily off the reservation and emergency removal or placement is necessary “to prevent imminent physical damage or harm to the child,” the state child welfare agency may act despite the fact the Tribal court otherwise has exclusive jurisdiction. 25 U.S.C. § 1922. In such circumstances, the state child welfare agency must act promptly to: (1) end the removal or placement as soon as it is no longer necessary to prevent imminent physical damage or harm to the child; and (2) move to transfer the case to the jurisdiction of the Tribe or return the child to the parents, as appropriate.

3. Concurrent Jurisdiction Off the Reservation

If the child's residence or domicile is not on the reservation, the Tribal and state court have concurrent jurisdiction. 25 U.S.C. § 1911(b). Even in this circumstance, however, there is a presumption of Tribal jurisdiction in cases involving an “Indian child.” Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30 (1989).