Federal Indian Law issues


The U.S. Supreme Court’s decision in McGirt v. Oklahoma, 140 S. Ct. 2452 (2020), (decided on July 9, 2020), saw that Court uphold a 200 year old treaty between the United States and Creek Indians that traces back to Andrew Jackson and the Trail of Tears. As a result of the McGirt decision, most of Eastern Oklahoma, including Tulsa, is now considered part of Indian Country. Contracts, land rights, and criminal cases in Eastern Oklahoma must be viewed, at least partially, through the scope of Federal Indian Law. By way of example, between July 9, 2020 and August 9, 2020, over 1000 criminal convictions by Oklahoma state courts have been overturned as a direct result of McGirt because state courts do not have subject matter jurisdiction over criminal prosecutions of defendants on Indian lands. Other dormant, but valid, treaties can be expected to again see future honor as a result of McGirt. If the area of the country you live in was once Indian territory, (e.g., Chattanooga, Tennessee), look to see if there may be an old Indian treaty that may impact your case. If you wish to discuss a legal matter, such as how Native American bloodlines may impact a pending child custody case in Tennessee, call attorney Gregory D. Smith, 931/647-1299 for a free consultation.

The Indian Child Welfare Act, commonly called ICWA, can be found at 25 U.S.C. section 1901 et seq. ICWA applies to state juvenile court cases where a termination of parental rights or surrender of parental rights exist and either the child or one of the parents is associated with a federally recognized Native American Indian tribe. ICWA also applies to custody cases arising from a state initiated dependency and neglect case where a parent or child is associated with a federally recognized Native American Indian tribe. The third area where ICWA sometimes becomes an issue is state filed private adoption cases where at least one the parents giving up a child for adoption is associated with a federally recognized Native American Indian tribe. ICWA does not normally apply to divorce cases where one or both parents in a pending state divorce case are Native American.

It may sound odd to say a parent is “associated with a federally recognized Native American Indian tribe.” This term-of-art usually means a party is a member of an Indian tribe that the United States Department of the Interior has declared to have proven existed before the United States became a nation and said tribe still exists today. An example of a federally recognized Indian tribe would be the Eastern Band of Cherokee Indians, based in North Carolina. This tribe has traceable blood ties to ancestors “registered” as Native Americans prior to the 1930s “Dawes Rolls.” Ironically, Cherokees in the federally recognized Oklahoma Cherokee Nation may have common ancestors to their North Carolina cousins. DNA tests often determine blood lines and acceptable percentages of Native American heritage for a person to qualify as a tribal member or to be deemed “associated with a tribe.” Some people who could be registered as Native American in a federally recognized tribe do not register, but perhaps a parent or grandparent has registered. That unregistered person still has potential association with a Native American tribe. Likewise, if a Native American couple adopt a non-Indian child, the tribe can declare the adopted child to be a tribal member since each tribe determines their own membership qualifications.

In the event that a known Native American child comes into state court custody via surrender, state intervention for neglect, or private adoption, the state and court have an obligation to try and notify the relevant federally recognized Indian tribe that the child is in state custody or is being considered for a private adoption. Then the tribe, or Native American family members, can intervene in the state case to either monitor, participate in the state case, or seek to move the matter to the tribal court associated with the federally recognized Native American Indian tribe pursuant to ICWA. This law helps avoid a de facto tribal genocide by non-Indian adoptions or state foster care scenarios. Note that ICWA rules do not necessarily apply if a tribe is not federally recognized. Sadly, the mandate of ICWA is sometimes overlooked or undermined by social workers not asking about a child’s tribal background or a parent deliberately hiding a Native American tribal association. ICWA applies while a case is proceeding and a tribe can intervene, even late in the process. Once a case becomes final, even if ICWA could have applied, the right to intervene by a tribe under ICWA is usually extinguished.

For more information on ICWA or other Federal Indian Law questions, call the Law Office of Gregory D. Smith, 931/647-1299 or visit www.gsmithlawfirm.com. Mr. Smith is listed in Mid-South Super Lawyers and is A-V rated by Martindale-Hubbell. You can read a featured article about Mr. Smith and Federal Indian Law in the November, 2019 ABA Journal, (the national magazine of the American Bar Association), at http://www.abajournal.com/magazine/article/tennessee-attorney-greg-smith.