THE OKLAHOMA BAR JOURNAL 14 | APRIL 2024 Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff. 73. 25 U.S.C. §1903 (the ICWA defines an “Indian child” as “any unmarried person who is under age eighteen and is either 1) a member of an Indian tribe or 2) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.”). 74. See 25 U.S.C. §1911(a) (restricting state court jurisdiction over Indian children domiciled on Indian reservations; requiring state courts to transfer jurisdiction over child custody proceedings involving non-reservation domiciled Indian children to tribal courts; and allowing Native American parents and tribes to intervene in state court proceedings); 25 U.S.C. §1912(a) (governing involuntary placements by state courts and requiring Indian tribes to receive notice of proceedings; requiring parents to be appointed counsel; and establishing the burden of proof and requisite evidentiary showings before a foster care placement or termination of parental rights can be accomplished in state court); 25 U.S.C. §1913(c) (governing the requirements for a voluntary placement of a Native child in foster care or voluntary termination of parental rights). 75. Until his untimely death, C. Steven Hager (1958-2021) served as the director of litigation at Oklahoma Indian Legal Services for more than 30 years, chief judge for the Kickapoo Tribe in Kansas and justice on the Kaw Nation Supreme Court and author of 24 editions of The Indian Child Welfare Act: Case and Analysis. 76. C. Steven Hager, “Transfer to Tribal Courts in Oklahoma under the Indian Child Welfare Act and Factors for the Tribal Court’s Consideration,” 81 OBJ 389 (2010). 77. See generally, Cherokee Nation Bar Association homepage, https://bit.ly/48P4uQv; Kaw Nation Bar Application, https://bit.ly/49NlDvc; (last visited Dec. 5, 2023). 78. See generally, www.oscn.net/v4 (last visited Jan. 8, 2024). 79. See generally, www1.odcr.com (last visited Dec. 22, 2023). 80. The tribal courts for the Chickasaw Nation, Quapaw Nation, Sac and Fox Nation and Wyandotte Nation all provide case file information via www1.odcr.com, but these tribal courts do not provide free access to the pleadings or documents entered as case entries on the docket. However, some images are available for a subscription fee. 81. Public Access Portal for the Cherokee Nation Tribal Court, https://bit.ly/4cd4mNK, (last visited Jan. 8, 2024). 82. Judicial Branch Case Records, https://bit.ly/4a68nBr (last visited Jan. 8, 2024). 83. Public Access Portal for the Muscogee (Creek) Nation District Court, https://bit.ly/3uYBPuy (last visited Jan. 8, 2024). 84. Custer Died for Your Sins (Macmillan, 1969). 85. Little Horn State Bank v. Crow Tribal Court, 690 F. Supp. 919 (D. Mont. 1988), vacated, 708 F. Supp 1561 (D. Mont. 1989) (“The Crow Tribal Court, acting as a sort of ‘kangaroo court,’ has made no pretense of due process or judicial integrity.”). 86. Stacy Leeds, dean of the Sandra Day O’Connor College of Law at Arizona State University; Cherokee Nation tribal member, appeals judge for the Hualapai Tribe in Arizona and the Rincon Band of Luiseno Indians in California. She has also previously served as dean at the University of Arkansas School of Law and as a justice for both the Cherokee Nation Supreme Court and the Kaw Nation Supreme Court. 87. Stacy L. Leeds, “[dis]Respecting the Role of Tribal Courts,” 42:3 Hum. Rts. 20, 20 (2017) (pointing out that this “lack of faith in tribal courts is typically limited to situations involving non-Indian litigants”). 88. Linda Karr O’Connor, “General Article: Best Legal Reference Books of 1995,” 88 Law Libr. J. 178 (Spring 1996) (“Don’t bother checking Black’s and Ballentine’s for the word hometowned. According to the Real Life Dictionary, it’s ‘legalese for a lawyer or client suffering discrimination by a local judge who seems to favor local parties and/or attorneys over those from out of town.’”). 89. Okla. Stat. tit. 12, §728; see also Okla. St. Dist. Ct. R. tit. 12, §30. 90. Cyr v. Walker, 29 Okla. 281, 116 P. 931 (1911); Buck v. Branson, 34 Okla. 807, 127 P. 436 (1912); James v. Adams, 56 Okla. 450, 155 P. 1121 (1915); Unussee v. McKinney, 133 Okla. 40, 270 P. 1096 (1928); Thomas v. Healey, 152 Okla. 93, 3 P.2d 1047 (1931). 91. See Barrett v. Barrett, 878 P.2d 1051, 1055 (Okla. 1994) (holding that state courts must honor tribal court judgments but that the trial court erred in not allowing a party to attack a tribal court order based upon fraud); Sheppard v. Sheppard, 655 P.2d 895, 902 (Idaho 1982) (holding that a tribal decree of adoption is entitled to full faith and credit as a decree of a territory under 28 U.S.C. §1738 (1994)); Jim v. CIT Fin. Serv. Corp., 533 P.2d 751, 752 (N.M. 1975); Halwood v. Cowboy Auto Sales, 946 P.2d 1088, 1090 (N.M. Ct. App.); Chischilly v. General Motors Acceptance Corp., 629 P.2d 340, 344 (N.M. Ct. App. 1980), In re Adoption of Buehl, 555 P.2d 1334, 1342 (Wash. 1976); see also Walksalong v. Mackey, 549 N.W.2d 384, 387 (Neb. 1996); Jackson County ex rel Smoker v. Smoker, 445 S.E.2d 408, 411 (N.C. Ct. App. 1994); City of Yakima v. Aubrey, 931 P.2d 927, 929 (Wash. Ct. App. 1997); cf. Brown v. Babbit Ford, Inc., 571 P.2d 689, 694 (Ariz. Ct. App. 1977) (holding that Arizona state courts were not required to give full faith and credit to enactments of a Navajo tribal council); Lohnes v. Cloud, 254 N.W.2d 430, 433 (N.D. 1977). 92. See United States ex rel. Mackey v. Coxe, 59 U.S. 100, 103 (1856) (implying that an Indian tribe is a domestic territory whose “laws and proceedings of the Cherokee territory, so far as relates to rights claimed under them, should not be placed upon the same footing as other territories in the Union.”). 93. 28 U.S.C. §1738A. 94. See, e.g., Tracy v. Superior Ct. of Maricopa County, 810 P.2d 1030, 1051 (Ariz. 1991) (finding that a subpoena to appear in a Navajo court should be enforced under the Uniform Attendance of Witnesses Act). 95. See 28 U.S.C. §1738B; see also In re: Day v. State, 900 P.2d 296, 300 (Mont. 1995) (noting that the Child Support Act includes “Indian Country” in the definition of “states”). 96. See 18 U.S.C. §2265. 97. See 25 U.S.C. §1911(d). A child custody order under the Indian Child Welfare Act is an order of foster care placement, termination of parental rights, pre-adoptive placement or adoptive placement. See 25 U.S.C. §1903(1). Interestingly, the Indian Child Welfare Act does not mandate that a tribal court grant full faith and credit to a state court order creating the somewhat anomalous situation where a tribal court could gain a transfer of jurisdiction over a child custody proceeding and ignore the state court rulings up to that point of transfer. See generally 25 U.S.C. §§1911 (1994) (providing rules for Indian tribe jurisdiction over Indian child custody proceedings). 98. 28 U.S.C. §1738A. 99. See In re: Larch, 872 F.2d 66, 68 (4th Cir. 1989); Eberhard v. Eberhard, No. 96-005-A, slip op. at 6 (Cheyenne River Sioux Tribal Ct. App. Feb. 18, 1997). 100. Examples include Public Law 280 itself, which mandates that state courts apply the laws of a tribe, including customary laws, if they do not conflict with state law, in resolving a private dispute. See 25 U.S.C. §1322(c) (requiring states to give full force and effect to any tribal ordinance or custom, exercised in the tribal authority, in determination of constitutional civil causes of action, so long as it is not inconsistent with applicable civil law of the state); 25 U.S.C. §483(a) (requiring a state court to defer to tribal court jurisdiction in a foreclosure of a mortgage on trust land). 101. Every Day Is a Good Day: Reflections by Contemporary Indigenous Women (Fulcrum Publishing, 2011). 102. See Muriel H. Wright, A Guide to the Indian Tribes in Oklahoma, 70 (1951). 103. Chadwick Smith and Faye Teague, “The Response of the Cherokee Nation to the Cherokee Outlet Centennial Celebration: A Legal and Historical Analysis,” 29 Tulsa L.J. 263, 293 (1993).
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