Answer: It Depends.
North Dakota is home to many federally recognized Indian tribes. Indian Tribes are sovereign nations, which means they function independently from federal and state governments, thus giving Tribes the power to govern themselves through their own Tribal Code.
Civil and criminal actions are adjudicated through the Tribal Courts and governed by the Tribal Codes that have been passed and adopted by the Tribe. As a rule of thumb, Tribal Courts will have jurisdiction to hear a case involving all enrolled members and non-enrolled members who live or do business within the boundaries of the Reservation.
The Tribal Code alike to State Statutes, Regulations, and Ordinances. Most Tribal Code may be found online, however, if one is unavailable, a copy may be provided upon request to the Legal Department. Due to the Tribe’s sovereignty, the Tribe is not obligated to follow or adopt State law rather, most Tribal Codes will incorporate and reflect the traditions and customs of its membership.
Tribal Jurisdiction in Family Law
If you intend to seek a divorce from a spouse who is enrolled or living on the Reservation or disputing a child custody settlement involving a Native American child who is enrolled or living within the boundaries of the Reservation, it is important to speak with an experienced and highly specialized legal counsel.
Your lawyer’s first task will be to determine whether the Tribal Court has jurisdiction over the matter. Native American couples can use either the Tribal Court or the North Dakota state system. In some cases, the state will have jurisdiction if the following are true:
- The child is domiciled or resides off the Reservation, and the child is not a ward of the Tribal Court.
- The state has been granted jurisdiction due under Public Law 280
- In a tribal-state agreement where the tribe allocates jurisdiction to the state.
- In limited emergency jurisdiction where a reservation-resident Indian child is temporarily not on the reservation and the state removed the child due to an emergency to prevent imminent harm to the child.
However, most couples tend to want such personal issues such as divorce and child custody settled according to their customs and traditions. Therefore, filing in Tribal Court may be the best option for you and your family. In instances where one party is not a member of the Tribe, things and jurisdiction can get complicated.
In such instances, the location of the respective spouses may determine the jurisdiction of their divorce. If one person lives on the Reservation and the other lives off it, then jurisdiction may come down to who commences the action first.
Other times, there may be situations the state of North Dakota will get involved to ensure that the child(ren) of the contending couple receives adequate support. In all situations, it is best to consult with an experienced and highly specialized legal counsel to help you navigate through these issues.
If you have questions about the jurisdiction of your custody case, call Circling Eagle Law today at (701) 401-7404.