The Indian Child Welfare Act, “ICWA,” speaks to both a forum selection and a child placement.
“Forum selection,” means which forum – court – will hear the dispute. “Child placement” means where will the court place the child? With you or someone else.
To figure out whether your case falls under ICWA, first look at the definitions. First, is your child an Indian child? An Indian child is unmarried, under the age of eighteen, either enrolled or eligible for enrollment in a federally recognized Indian Tribe, and the biological child of an enrolled member. 25 USC 1903(3).
“Enrolled” or “eligible for enrollment” can be dicey. Indians get to determine who is an Indian and who isn’t. So, even if, per the tribal enrollment ordinance, your child does not qualify as an Indian, he does if the Tribal Council or Tribal Courts says he does.
If your child is an Indian, the next question is whether your custody dispute over the child is with your wife or husband, or with a third-party. A child-custody proceedings is, to summarize, a dependency. 25 USC 1903(1). The definition refers to foster care, termination of parental rights, or adoption. Id. It does not include a placement based on juvenile delinquency or an award of custody based on a divorce proceeding.
So, if your child is an Indian, but you and the other side are getting divorced, ICWA does not directly apply. The forum will be chosen based on other law and the underlying facts. The primary fact will be domicile. Where is the child domiciled, which is to say, where does he live and where did the parties intend to live prior to filing the petition for divorce. On the other hand, if your child is an Indian in the context of a dependency, the presumptive forum for adjudicating the dependency is tribal court.