39.1 OVERVIEW OF THE INDIAN CHILD WELFARE ACT OF 1978 (ICWA)

39.1.1 PURPOSE

The Indian Child Welfare Act (ICWA) was enacted in 1978 to

[p]rotect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture.... 25 U.S.C. §1902.

ICWA protects the interests of both Indian children and tribes. In the context of child welfare law, protecting the interests of a tribe in its children is unique. While the rights of parents, grandparents, stepparents and foster parents have been statutorily protected, ICWA was the first statute to protect a group's interests in a child. The Act can be found at P.L. 95-608, 92 Stat. 3069, 25 U.S.C. §§1901-1923.

Congress enacted ICWA as a result of several studies finding “that an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by non-tribal public and private agencies and that an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions.” 25 U.S.C. §1901(4). Depending upon the state, the rates were from three to eight times the number of other children being removed, either temporarily or permanently.The numbers were particularly disproportionate given that the Native population at that time was less than 1% of the population of the United States.

39.1.2 SUMMARY OF REQUIREMENTS

Some key aspects of ICWA include:

• Exclusive tribal jurisdiction or concurrent jurisdiction as the two options for cases involving Indian children, depending on residence or domicile:
  
  
  • Exclusive tribal jurisdiction for member Indian children residing or domiciled within the reservation or who are wards of the tribal court regardless of domicile; and
  • Concurrent jurisdiction with the state, but with a preference for tribal jurisdiction, when an Indian child is not residing or domiciled on the reservation.

• Definition of "best interest of the child," broadened to incorporate protection of the Indian child's cultural and tribal identity, preferably within the jurisdiction of the child's tribe.
• Stringent standards of evidence, more strict than most state standards, for the removal of children from their families.
• Procedural and substantive protections.
• Specified placement preferences, which cannot be waived without strong evidence, for voluntary and involuntary foster care placements and adoptions.

39.1.3 ICWA AND THE CHILDREN'S CODE

The New Mexico Children’s Code has been amended over the years to ensure that each child’s cultural heritage is protected and that cases involving Indian children comply with ICWA. There are specific references to Indian children throughout the Code and, in some instances, the Code’s requirements are more stringent that those found in the federal act. State laws that set a higher standard of protection govern over the provisions in ICWA; similarly, if the standard in ICWA is higher, then the federal law prevails. 25 U.S.C. §1921.

39.2 SPECIFIC ICWA PROVISIONS

39.2.1 SCOPE

ICWA is directed toward states. It is not binding upon tribes, but without tribal cooperation states may find it difficult to comply with the statute. For example, tribes can affirm a child's eligibility for or membership in the tribe or recommend placements that comply with ICWA. Since tribes are not subject to ICWA constraints, they can and have adopted laws that allow placements that differ from ICWA’s placement preferences.

39.2.2 APPLICABILITY

ICWA applies when the following prerequisites are met:

• The child is an Indian child, defined as an unmarried person under 18 who is either (1) a member of an Indian tribe or (2) eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe. 25 U.S.C. §1903(4). If the child is a member of or eligible for membership in more than one tribe, the tribe with which the child has the more significant contacts is considered to be the child’s tribe. 25 U.S.C. §1903(5). The term “Indian tribe” is defined as a federally recognized Indian tribe. 25 U.S.C. §1903(8).
• The case is a child custody proceeding, defined as foster care placement, termination of parental rights, pre-adoptive placement, or adoptive placement. 25 U.S.C. §1903(1).

The child's tribe or tribes must be contacted to determine whether the child is eligible for membership in or is a member of that tribe. State courts do not make independent determinations about a child's eligibility for membership in a particular tribe; that is the tribe's responsibility. Tribes set their own membership criteria, which differ from tribe to tribe.

New Mexico Law. Whenever a child is placed in CYFD’s custody, the Children’s Code requires CYFD to investigate whether the child is eligible for enrollment as a member of an Indian tribe. If CYFD determines that a child is eligible for enrollment, CYFD must pursue enrollment on the child’s behalf. §32A-4-22(I). This actually goes beyond the requirements of ICWA. 25 U.S.C. §1921. Also, note that a definition of “Indian tribe” was added to the general definition section of the Children’s Code. Section 32A-1-4(L) defines “Indian tribe” as “a federally recognized Indian tribe, community or group pursuant to 25 U.S.C. § 1903(1).”

39.2.3 EXCEPTIONS

Certain activities are not generally covered by ICWA, but may trigger ICWA at some point:

Delinquency. Delinquency is not covered by ICWA. 25 U.S.C. §1903(1). If, however, the delinquency proceeding may or does lead to removal of a child from home to foster care, ICWA applies. There is no New Mexico case law on this provision.

Custody Disputes.Custody disputes in the course of divorce proceedings are not covered by ICWA. 25 U.S.C. §1903(1). ICWA also does not address custody disputes between non-married parents, and the majority of non-New Mexico cases have held that ICWA does not apply to such disputes. There is no New Mexico case law on this provision.

Emergency Removal. While emergency removal from the home does not require a placement that complies with ICWA’s enumerated preferences, 25 U.S.C. §1922, it may lead to a foster care placement that is longer in term. A suggested practice would be to place the child according to ICWA’s preferences from the beginning of the removal. There is no New Mexico case law on this issue.

Mental Health Placement. It is not clear how ICWA affects placement for mental health treatment in an institution. The few authorities that have addressed this point seem to agree that ICWA is not applicable unless it leads to foster care placement, as opposed to placement in an institution. There is no New Mexico case law on this issue.

Cultural Identification. Some children may not meet ICWA’s definition of "Indian child” yet may identify culturally as Indian. Although the following categories of children do not fall within ICWA's definition of "Indian,” the court may wish to recognize their cultural heritage and afford them the same treatment and protection as Indian children:

• Members or children of members of Canadian, Mexican, South or Central American tribes;
• Native Hawaiians; 
• Those who have a large blood quantum from several federally-recognized tribes, but in an amount insufficient for membership in any one tribe; and
• Those who have a sufficient blood quantum required by tribal law, but do not meet other requirements for membership, such as residency.

39.2.4 JURISDICTION

Exclusive Tribal Jurisdiction
A tribe has exclusive jurisdiction over an Indian child who resides or is domiciled within its reservation, even when the child is temporarily off the reservation. The tribe also has exclusive jurisdiction over an Indian child who is a ward of the tribal court, regardless of the child's residence or domicile. 25 U.S.C. §1911(a). An out-of-wedlock child takes the domicile of his or her mother at the time of birth; when a child whose mother is a tribal resident is removed from the reservation by a family member and placed for adoption, the child remains within the exclusive jurisdiction of the tribe. In the Matter of the Adoption of a Baby Child, 102 N.M. 735 (Ct. App. 1985). See also Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30 (1989). 

Where a tribal court has exclusive jurisdiction, but somehow the child is in the state’s jurisdiction, the case should be transferred without delay, even if the parent objects. Parental wishes do not support a state court's refusal to transfer where the tribe has exclusive jurisdiction over the child. Mississippi Band, 490 U.S. at 53. There may be occasions, however, when a tribe is not prepared to receive the child. A solution in these cases may be to enter into a specific agreement with the tribe to provide for the orderly transfer of jurisdiction on a case-by-case basis or for concurrent jurisdiction. 25 U.S.C. §1919.

Concurrent Jurisdiction
Tribes and states have concurrent jurisdiction in foster care placement or termination of parental rights when the Indian child is not domiciled or residing on a reservation. Yet ICWA requires the state court, in the absence of good cause to the contrary, to transfer these proceedings to the tribal court upon petition of a parent, tribe or the Indian custodian (defined as an Indian person with legal custody of the child under tribal law or custom, state law, or parental authorization). 25 U.S.C. §1911(b). Transfer is prohibited if the tribe or either parent objects, regardless of whether the objecting parent is Indian or non-Indian. Compare, Children’s Code §32A-1-9.

The decision to transfer is based on the circumstances and evidence of each case, but the preference is to transfer. The Bureau of Indian Affairs’ Guidelines for State Courts; Indian Child Custody Proceedings, which can be found in §39.7 of this chapter, may assist the court in determining when to transfer. In the Matter of the Guardianship of Ashley Elizabeth R., 116 N.M. 416 (Ct. App. 1993). Whether a tribal court is not convenient under the doctrine of forum non conveniens is determined by the facts of each case and the party opposing transfer has the burden of establishing that good cause exists to not transfer. In the Matter of the Termination of Parental Rights of Wayne R.N., 107 N.M. 341 (Ct. App. 1988); In the Matter of the Termination of Parental Rights of Laurie R., 107 N.M. 529 (Ct. App. 1988); In the Matter of the Guardianship of Ashley Elizabeth R, above.

The BIA Guidelines provide some examples of “good cause.” Good cause exists if the tribe does not have a tribal court to which the case can be transferred, or where the proceeding was at an advanced stage when the petition to transfer was received and the petitioner did not file the petition promptly after receiving notice of the hearing, or where the Indian child is over 12 years of age and objects to the transfer. Guidelines, §C.3.

Findings Required. In the case of an Indian child who is the subject of an abuse or neglect proceeding in New Mexico, it is critical that the parties present evidence early in the proceeding demonstrating the residence or domicile of the child, and that they request findings of fact on the issue. This will allow the court to determine whether it has jurisdiction over the matter and what standards should apply if there is ever a request to transfer the matter to tribal court. State ex rel. CYFD in the Matter of Andrea Lynn M., 2000-NMCA-079, 10 P.3d 191.

39.2.5 NOTICE REQUIREMENTS

Under ICWA, there is a distinction between voluntary and involuntary placement. ICWA only requires notice in cases involving involuntary placement in foster care or termination of parental rights. The party seeking placement or TPR must notify the child’s parent or Indian custodian and the tribe of the pending proceedings and the right to intervene. Notification must take place by registered mail with return receipt requested. No proceeding may be held until at least 10 days after receipt of notice; an additional 20 days may be granted. 25 U.S.C. §1912(a).

ICWA does not contain similar notice provisions for voluntary placement but the New Mexico Children’s Code does. It requires that the Indian tribe be notified in abuse, neglect or adoption proceedings. §32A-1-14(B).

39.2.6 INTERVENTION

In a foster care placement or termination of parental rights proceeding in state court, the Indian custodian and the tribe have the right to intervene at any point, including on appeal. 25 U.S.C. §1911(c); In the Matter of the Adoption of Begay, 107 N.M. 810 (Ct. App. 1988). Compare, Children’s Code §32A-4-27, Rule 10-108(E). Other parties may intervene as allowed by state law and rule.

The requirement that the state give notice to the tribe of its right to intervene in a state court proceeding attaches even when there is just a possibility that the child may be an Indian child. If the identity of the tribe cannot be determined, notice is given to the Secretary of the Interior. 25 U.S.C. §1912(a). Compare, Children’s Code §§32A-1-14, 32A-4-6(C), 32A-4-29(D), 32A-4-32(E), 32A-5-16(C), 32A-5-27(D)

39.2.7 RIGHT TO COUNSEL

An indigent parent or Indian custodian has the right to court-appointed counsel in any removal, placement, or termination proceeding. The court in its discretion may appoint counsel for the child upon a finding that appointment is in the best interest of the child. 25 U.S.C. §1912(b). In New Mexico, the court automatically appoints an attorney for the child. §32A-4-10(C). For children under 14 years of age, the court appoints an attorney guardian ad litem. For children 14 and older, the court appoints an attorney who represents the child in the same manner as an adult is represented by counsel; the client directs the representation. §32A-4-10(C) (as amended in 2005).

39.2.8 SERVICES AND PROGRAMS FOR AN INDIAN FAMILY

Before a party may seek a foster care placement of, or termination of parental rights to, an Indian child, the party must make "active efforts...to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family” and demonstrate that these efforts were unsuccessful. 25 U.S.C. §1912(d). The court must have proof that active and viable efforts were made. A number of non-New Mexico cases have held that if the family resists the efforts or refuses to cooperate, or the evidence shows that efforts would be useless, the requirement for active efforts has been met. Compare with the reasonable efforts requirements under state law and ASFA; see Handbook §§3.2 and 38.4.

39.2.9 EVIDENTIARY REQUIREMENTS

Each party to a foster care placement or termination of parental rights proceeding has the right to examine the reports and other documents on which any decision of the court is based. 25 U.S.C. §1912(c).

For the court to order foster care placement, there must be clear and convincing evidence that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child. 25 U.S.C. §1912(e). “Foster care placement” means any action removing an Indian child from his or her parent or Indian custodian for temporary placement in a foster home or institution, or with a guardian where the child cannot be returned home on demand. 25 U.S.C. §1903(1)(i).

For the court to order termination of parental rights, there must be evidence beyond a reasonable doubt that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child. 25 U.S.C. §1912(f).

The evidence for both foster care placement and termination of parental rights must include expert witness testimony. 25 U.S.C. §1912(e), (f). The BIA Guidelines assist in determining who may testify as a qualified expert witness. While ICWA refers to expert witnesses in the plural, one qualified witness is sufficient. As a general rule, the witness should have some knowledge of tribal culture, preferably that of the child’s tribe. Guidelines, §§D.3 and D.4.

39.2.10 VOLUNTARY FOSTER CARE OR TPR (RELINQUISHMENT)

For voluntary foster care placement or termination of parental rights, the parent or Indian custodian’s consent must be:

• In writing; 
• Given at least 10 days after the birth of the child; 
• Recorded before a judge of a court of competent jurisdiction; and
• Accompanied by that judge's certificate that the terms and consequences of the consent were fully explained and fully understood by the parent or Indian custodian and interpreted into a language that the parent or Indian custodian understood.

25 U.S.C. §1913(a).

A parent or Indian custodian may withdraw consent to a foster care placement at any time, at which point the child must be returned to the parent or custodian. 25 U.S.C. §1913(b). Consent to termination of parental rights or adoptive placement may be withdrawn prior to entry of the final decree of termination or adoption, at which point the child must be returned to the parent or custodian. 25 U.S.C. §1913(c). The parent may withdraw consent to an adoption within two years after the entry of a decree on the grounds of fraud or duress. If the court finds fraud or duress was used to obtain the consent, the decree must be vacated and the child returned to the parent. 25 U.S.C. §1913(d).

39.2.11 FULL FAITH AND CREDIT

The state court is required to give full faith and credit to tribal child custody proceedings. ICWA requires that full faith and credit be given to tribal judicial proceedings involving custody of an Indian child, but only to the extent that the tribe affords full faith and credit to the state judicial proceedings. 25 U.S.C. §1911(d). Under New Mexico law, tribal judgments must be afforded full faith and credit without any requirement of reciprocity. Jim v. CIT Financial Services Corp., 87 N.M. 362 (1975); Halwood v. Cowboy Auto Sales, 1997-NMCA-098, 124 N.M. 77.

The New Mexico Children’s Code requires that a tribal court order pertaining to an Indian child in an action under the Children’s Code be recognized and enforced by the district court for the judicial district in which the tribal court is located. A tribal court order that accesses state resources should be recognized and enforced pursuant to intergovernmental agreements entered into by the tribe and CYFD or another state agency. The tribal court, as the court of original jurisdiction, retains jurisdiction and authority over the child. §32A-1-8(E).

39.3 ICWA PLACEMENT PREFERENCES

ICWA’s enumerated placement preferences for foster care placement and adoption apply in both involuntary and voluntary placements. While requiring compliance with the preferences for voluntary placements has been controversial because it undercuts the rights of a parent to determine who may adopt the child, the preferences are intended to protect the child’s Indian identity and cultural heritage and recognize the tribe's interests in its children. ICWA allows deviation from the preferences only if "good cause to the contrary" is shown. The prevailing social and cultural standards of the parent's Indian community are to be applied in meeting the preferences. 25 U.S.C. §1915(d). The record of placement must show the efforts made to comply with the preferences and must be made available to the child's tribe or the Secretary of the Interior on request. 25 U.S.C. §1915(e). Compare, Children's Code §§32A-4-9, 32A-5-5.

Good Cause. Examples of good cause to modify preferences are found in the BIA Guidelines. Good cause may be based, for example, on the request of the biological parents or the child when the child is of sufficient age, extraordinary physical or emotion needs of the child as established by expert testimony, or the unavailability of suitable families for placement, after diligent search. Guidelines, §F.3.

39.3.1 FOSTER CARE PREFERENCES

ICWA requires that foster care or pre-adoptive placement must be in the least restrictive setting that most approximates a family and in which any special needs of the child can be met. The child must be placed within reasonable proximity to home. Absent good cause to the contrary, preference in foster care or pre-adoptive placement must be given to:

• A member of the Indian child's extended family; 
• A foster home licensed, approved, or specified by the Indian child's tribe; 
• An Indian foster home licensed or approved by an authorized non-Indian licensing authority; or 
• An institution for children approved by an Indian tribe or operated by an Indian organization that has a program suitable to meet the child's needs.

25 U.S.C. §1915(b).

39.3.2 ADOPTION PREFERENCES

Absent good cause to the contrary, preference in adoptive placement must be given to: 

• A member of the child's extended family; 
• Other members of the child's tribe; or 
• Other Indian families.

25 U.S.C. §1915(a).

39.3.3 TRIBAL ROLE IN PREFERENCES

Tribes may establish different orders of preferences by resolution as long as the placement is the least restrictive setting appropriate to the needs of the child. 25 U.S.C. §1915(c). The state court should determine if the child's tribe has established different preferences and, if so, comply with them rather than with ICWA’s preferences. Even if the tribe has adopted different preferences, the state court probably may deviate from them if good cause is proved.

39.3.4 PARENT OR CHILD PREFERENCES

While ICWA allows the court to consider the Indian child's or parent's wishes for placement, these preferences are not binding. 25 U.S.C. §1915(c). While the court may give weight to a parent's wish to remain anonymous in applying the placement preferences, how much weight a court should accord the parent's wish is unclear, especially when faced with the child's right to cultural heritage or identity. The answer depends on the circumstances of the case, but the court can be guided by ICWA’s primary purpose of protecting the rights of children and tribes.

39.4 ICWA AND THE ADOPTION AND SAFE FAMILIES ACT OF 1997

The Adoption and Safe Families Act (ASFA) does not change or lessen the state's responsibility to comply with ICWA. At the same time, ASFA requirements apply to Indian tribes and Indian children receiving or eligible for Title IV-E funds. Since Indian tribes gain access to Title IV-E funds on behalf of Title IV-E eligible children only through agreements with the states, they must operate within the parameters of the state plan. The Department of Health and Human Services reports that it has no authority to adjust requirements for Indian children. See the preamble to the ASFA regulations, as published in the Federal Register in January 2000. 65 Fed. Reg. 4029 and 4031 (Jan. 25, 2000).

39.5 CASE LAW

Following is a selected, annotated list of cases, the majority of which involve ICWA.

39.5.1 FEDERAL CASES

Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30 (1989). 
"Domicile" should be defined not by state law, but by a uniform federal law with uniform nationwide application. Minors cannot form the requisite intent to establish domicile, which is determined by that of their parents, and an illegitimate child's domicile is that of his or her mother, even when the child has not been physically present in the parents' or mother's domicile. 

The legislative history of ICWA clearly shows that Congress perceived that state courts were partly responsible for the problems that ICWA was intended to correct, and a reading of the entire statute reveals this intent. Even where an Indian child's parent attempts to circumvent the application of ICWA, such attempt cannot be used to undermine tribal jurisdiction because the Act is concerned both with the interests of children and those of their family and with the impact on the tribe of large numbers of Indian children being adopted by non-Indians. The demonstrated negative impact on children being placed outside their culture is a reason to supplant the wishes of parents. The legislative history of the Act, as well as the language of the Act, clearly indicates that the legislation covers voluntary as well as involuntary removal of Indian children.

Kiowa Tribe of Oklahoma v. Lewis, 777 F.2d 587 (10th Cir. 1985).
The doctrine of res judicata precluded the tribe from relitigating a Kansas judgment allowing the adoption by a non-Indian couple of a child who the tribe claimed was subject to ICWA.

Kickapoo Tribe of Oklahoma v. Rader, 822 F.2d 1493 (10th Cir. 1987).
The tribe's failure to appeal from a state court decision finding that ICWA did not apply to an adoption proceeding precluded a collateral attack on the state order in federal district court under Oklahoma’s doctrine of res judicata.

Roman-Nose v. N.M. Dept. of Human Services, 967 F.2d 435 (10th Cir. 1992).
The federal district court has subject matter jurisdiction under ICWA, 25 U.S.C. §1914.

Comanche Indian Tribe of Oklahoma v. Hovis, 53 F.3d 298 (10th Cir. 1995).
The tribe could not relitigate a dispute concerning jurisdiction to decide child custody after the state court determined it retained jurisdiction.

Morrow v. Winslow, 94 F.3d 1386 (10th Cir. 1996). 
While ICWA provides minimum federal standards in state proceedings, it does not divest states of traditional jurisdiction over Indian children, even though ICWA provides that any court of competent jurisdiction is authorized to consider challenges to foster care placements and terminations of parental rights. The Younger abstention doctrine requires that state appellate remedies be exhausted in light of the traditional state interest in family relations, unless the state proceeding is motivated by a desire to harass or bad faith, the challenged statute flagrantly violates express constitutional prohibitions in every clause and paragraph, or extraordinary circumstances exist involving great and immediate irreparable injury to the federal plaintiff.

39.5.2 NEW MEXICO CASES

Jim v. CIT Financial Services Corp., 87 N.M. 362 (1975). 
Navajo Nation laws are entitled by federal statute to full faith and credit in the courts of New Mexico.

In the Matter of the Adoption of a Baby Child, 102 N.M. 735 (Ct. App. 1985). 
An out-of-wedlock child takes the domicile of his or her mother at the time of birth. Since the mother was a resident of her reservation at pertinent times, as well as being a member of a tribe, jurisdiction over the adoption proceedings was exclusive in the tribal court. The state children's court lacked jurisdiction.

In the Matter of the Termination of Parental Rights of Wayne R.N., 107 N.M. 341 (Ct. App. 1988). 
The determination by a state court whether to transfer an ICWA case is made on a case-by-case basis, depending on the circumstances. The party opposing the transfer has the burden of establishing that good cause to not transfer exists. The trial court is to consider practical factors that make trial easy, expeditious, and inexpensive when determining whether the doctrine of forum non conveniens should be invoked. In this state court case, evidence supporting the termination complied with the higher standards required by ICWA.

In the Matter of the Termination of Parental Rights of Laurie R., 107 N.M.529 (Ct. App. 1988). 
The trial court’s denial of a request to transfer a termination proceeding to tribal court was not an abuse of discretion where the mother's oral request was made after trial had begun and the tribe had waived its right to participate in the proceeding. Evidence supporting the termination complied with the higher standards required by ICWA.

In the Matter of the Adoption of Begay, 107 N.M. 810 (Ct. App. 1988). 
The tribe may intervene on appeal even when it did not seek intervention in the lower court. Also, §1914 of ICWA allows a parent or guardian or the tribe to challenge a state court order, and it does not require the three to join in challenging the order.

In the Matter of the Guardianship of Ashley Elizabeth R., 116 N.M. 416 (Ct. App. 1993). 
Once a proceeding is determined to be an ICWA-defined foster care proceeding, it must be transferred to tribal court unless good cause to not transfer is proved. The Bureau of Indian Affairs’ Guidelines for State Courts: Indian Child Custody Proceedings set out four circumstances under which good cause not to transfer may exist and these are not met in this case. The court's reasons for not transferring the case may be good reasons to appoint petitioners as guardians, but they do not constitute good cause to not transfer the case to tribal court.

State ex rel. HSD in the Matter of Megan S., 1996-NMCA-048, 121 N.M. 609. 
Orders and documents of the tribal court, while not technically authenticated, should have been admitted into evidence and considered at a show cause hearing for contempt for failure to return children to New Mexico foster care after a tribal court asserted jurisdiction under ICWA and placed the children in the emergency custody of the Cherokee Nation.

The state children's court had concurrent jurisdiction with the tribal court when the children and mother were domiciled in New Mexico. It retained such jurisdiction after the mother moved her domicile to the Cherokee Nation during the pendency of the proceedings. Even if the children's court erred when it refused to transfer the proceeding to tribal court, such error is corrected by appeal or writ and did not cause the children's court to lose concurrent jurisdiction or prevent the court from punishing a violation of its order. Neither full faith and credit nor comity requires recognition of an attempt by one court to abate or stay proceedings in a different court.

Halwood v. Cowboy Auto Sales, 1997-NMCA-098, 124 N.M. 77. 
Imposing punitive damages on non-Indians for conduct occurring on reservation is within the jurisdiction of the tribal court and such a judgment is entitled to full faith and credit and comity.

State ex rel. CYFD in the Matter of Andrea Lynn M., 2000-NMCA-079, 10 P.3d 191.
The case was transferred from state court to Navajo tribal court over the father’s objection. The Court of Appeals affirmed, but pointed out that none of the parties presented evidence demonstrating the residence or domicile of the child, nor were findings of fact on residence and domicile requested. The lack of evidence on residence or domicile made it impossible to determine whether the transfer provisions of 25 U.S.C. §1911(b) applied. Also, once proper jurisdiction has attached, a court cannot subsequently be divested of its jurisdiction by the actions of the parties.

39.6 ADDITIONAL REFERENCES

The following treatises contain additional information on federal Indian law:

• F. Cohen, Handbook of Federal Indian Law (Michie, 1982 ed.) 
• W. Canby, Jr., American Indian Law in a Nutshell (West, 1998)

39.7 BIA GUIDELINES

See the Bureau of Indian Affairs' Guidelines for State Courts: Indian Child Custody Proceedings, 44 Fed. Reg. 67584 (1979) here: PDF.

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