Tribal Courts and Family Law: When Does a Native American Tribal Court Have Jurisdiction Over a Divorce or Child Custody Matter?

By May 5, 2016blog

Washington State has one of the largest Native American populations in the country. As a result, the state has a robust system of tribal courts than handle many matters, including divorce and child custody issues involving Native American children and adults.

What Is a Tribal Court?

There are 29 federally-recognized tribes in Washington State. Each tribe has its own separate tribal court system. The tribal court has broad jurisdiction over criminal and civil matters involving enrolled members of the tribe. The court can hear divorce matters, child custody matters, and can enforce child support.

The tribal court system is outside of the state court system, and each tribal court has its own rules and procedures. Usually, tribal courts will recognize state court decisions and vice versa, but this is not always the case.

Who Can Use a Tribal Court?

While many people claim some Native American heritage, only people who are enrolled members of a particular tribe are allowed to use the tribal court. The enrollment process differs for each tribe, and each tribal constitution will describe specific criteria for membership.

In general, common tribal requirements include a direct lineal descendency from a person on the tribe’s base roll or a certain percentage of documented tribal blood. Additionally, the tribe may require a person to live on the reservation or have continued contacts with the tribe.

Can You Choose Which Court to Use?

In some cases, a tribal court will have exclusive jurisdiction over a family law matter. Usually, this occurs when one or both parties are members of a specific tribe and live on the reservation. Matters pertaining to children who are enrolled members of the tribe or live on the reservation may also need to be heard in tribal court.

In most cases, Native Americans can choose to use either the tribal court system or the state court system to resolve their family law issues. Some couples prefer to have personal matters handled within the culture of their tribe while others feel more comfortable with the state court system.

Often, the tribal and state court systems will overlap. If there is an existing state or tribal court order, any subsequent case involving those parties may have to be heard in that court. If one of the parties receives state assistance, like TANF benefits, the state may get involved in a tribal case to ensure that any children involved are receiving adequate support.

How Is Child Support Enforced in Tribal Court?

Tribal courts have various ways to enforce a child support order. First, each tribe can apply to the National Tribal Child Support Association, a program which provides federal aid for child support enforcement in Indian tribes. The tribe can use this federal program to establish child support enforcement programs as well as to provide aid programs for needy tribe members.

Additionally, tribal courts have limited access to the Washington State Division of Child Support (DCS) databases, and DCS has a specific tribal division that works within the tribal court system.

Which Court Should You Choose?

Both state and tribal courts focus on the best interests of the children involved in any case. The rules for child support within the tribal system vary and each tribe can set its own guidelines that fit within the tribe’s culture and beliefs. In some instances, tribal courts may award more child support than in state court. In other cases, state court may be the better option.

If you are a Native American considering filing for divorce or initiating a child support or child custody matter, it is important to speak with an attorney about your options. At Ashby Law, our attorneys are experienced in the state court system, and can help you determine the best course of action for you and your children.

To schedule your initial appointment at Ashby Law, contact us today by calling 509-572-3700.

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